A while ago I watched a round-table discussion on the National Archives release or Thurgood Marshall's papers pretty much immediately after his death. Marshall had granted through Deed of Gift all of his personal papers to the archives. He had also considered shredding all of them at one point. The personal papers included alot of notes/letters/statements exchanged between Supreme Court judges over influencial court rulings. There was a large outcry after the papers were released because some of the letters were from jidges still on the bench today, and some of the cases could still come up again.

The discussion included several people that thought the National Archives were well within their right to release the papers, as Marshall had used a clause in the deed of gift that stated "At the archive's discretion" rather than stating a specific time-frame (ex: ten years after his death). So legally, they can't be sued. So the question was an ethical one. People that were upset with the archive said Marshall had a respect for the way in which the Supreme court handled itself, and wouldn't have wanted the papers released until ten years after his death. A counter-arguement was that he was a judge, and full well knew the weight of the clause he used in the deed.

One man argued for the Judicial Mystique. That the third branch of government, and how they arrive at decisions and comport themselves, has always been shrouded in a bit of mystery. The mystery helped remove the Courts from the concept of dirty back room politicing (swap votes, nit-picking on language, etc). He said presenting papers so immediately ruins the courts. Others had counter arguements about the research value, and accused justices of just being worried about being caught in duplicitious (?) acts.

What do you feel about the Supreme court's process? How much do you think should be revealed? How could the potential release of future papers affect how judges negotiate trials, and what they do with their paper trail afterwards? Really, do you feel that the Judicial Branch is very different than the other two branches of government> And if so, is it because of some level of obscurity as to how they operate "behind the scenes?"

I would like as much as possible to be revealed. Isn't democracy more about daylight shone into corridors of power and the maturity of making decisions ourselves as a society? The way Americans treat the law at the higher levels has long reminded me of a church more than a democracy.

I think it is important that the papers do not become public too soon. Yes, that particular judge may be gone, but his notes will discuss other judges still on the bench.

The whole idea of an independent judiciary is one that makes its decisions , like a jury, without the public knowing. If a juror knew his or her comments would be seen by others later, it may make them decide differently.

Why is that? I don't know for sure, but I think it would more likely influence an understanding of the disscussions that helped arrive at the Majority/Minority views? I actually thought it would be an interesting way of a dissenting viewpoint to have reach beyond the decision of the actual trial, and tht judges may even write those papers anticipating the public reading them more than the other judges. Sort of a way of leaving information for others to expound on after a decision has been made. I think about all the "stars" that left diaries, and the jokes about those diaries being written with readers in mind. This could be a very interesting route for supreme court judges to take actually.

Well, judges can already write dissenting opinions and do all the time. When the Supreme Court makes a decision, there are many many pages explaining why they decided the way they did. Lawyer need those explanations so they can argue future cases, because you can't cite a case as precdent if you're not sure why the court decided the way they did.

The opinions are the finished product that are important, not the rough drafts.

However, the negotiating that goes on behind closed doors, as well as judges' personal opinions of each other, don't really help us much at all except in a historical perspective. That's why I say they should be made available only years after all of the parties involved are dead and it doesn't matter.

Studies have shown that jurors act differently when they know someone will be revieweing their negotiations. Confidentiality is important in the legal process.