The Great Paper Caper. Someone swiped Justice Frankfurter’s papers. What else has gone missing?

Jill Lepore, The Great Paper Caper. Someone swiped Justice Frankfurter’s papers. What else has gone missing? The New Yorker, 1 December 2014. “The papers of Supreme Court Justices are not public records; they’re private property. The decision whether to make these documents available is entirely at the discretion of the Justices and their heirs and executors. They can shred them; they can burn them; they can use them as placemats. Texts vanish; e-mails are deleted. The Court has no policies or guidelines for secretaries and clerks about what to keep and what to throw away. Some Justices have destroyed virtually their entire documentary trail; others have made a point of tossing their conference notes. “Operation Frustrate the Historians,” Hugo Black’s children called it, as the sky filled with ashes the day they made their bonfire.”

The biggest heist in the history of the Library of Congress, Manuscript Division, was so sneaky that for a long time no one noticed that someone had smuggled out of the Reading Room more than a thousand pages from the papers of the U.S. Supreme Court Justice Felix Frankfurter, including Frankfurter’s correspondence with Lyndon B. Johnson, Charles Evans Hughes, McGeorge Bundy, and Hugo Black, and seven years’ worth of Frankfurter’s diaries. In November, 1972, after the theft was discovered, the Library of Congress called the F.B.I. The F.B.I. launched an investigation; it lasted more than a year. A grand jury was convened. Then, suddenly, the investigation was abandoned. The thief was never caught. The case is as cold as stone….

The Supreme Court’s official papers—formal filings, such as petitions, opinions, and briefs; and official records, such as audio recordings, transcripts, and governmental, case-related correspondence—end up at the National Archives. The papers of the Justices, if they save them, tend to go to the Library of Congress, to their alma maters, to their home towns, or to some other place they happen to like. They’re scattered across the country, and, by the time they arrive, they have, as a rule, been carefully culled.

The secrecy surrounding the U.S. Supreme Court derives from a policy set by the fourth Chief Justice, John Marshall, who wanted the Court to issue single, unanimous decisions and to conceal all evidence of disagreement. His critics considered this policy to be incompatible with a government accountable to the people….

Cases decided by the Rehnquist Court include Bush v. Gore, one of the most momentous actions ever taken by the Court. In the twenty-first century, the Supreme Court wields far more power than it did in the eighteenth. Is judicial secrecy defensible in an era of judicial supremacy? Fair-minded arguments can be made on both sides. But, so far, the question hasn’t been debated; it [has] been tabled….

During the twenty-five years that Frankfurter taught at Harvard Law School, from 1914 to 1939, a conservative Court repeatedly struck down laws aimed at economic reform and regulation, and Frankfurter insisted that, in declaring measures like minimum-wage laws unconstitutional, the Court was overstepping its authority. During the twenty-three years that Frankfurter served on the Court, from 1939 to 1962, its most significant judicial activism concerned overturning laws that restricted civil liberties and civil rights. Frankfurter nearly always dissented from these decisions, citing his commitment to judicial restraint. A brilliant liberal scholar, Frankfurter became known, on the Court, as its most implacable conservative, not because his politics changed but because his view of the role of the Court did not.

Arguments about judicial restraint are not often principled arguments about jurisprudence; instead, they’re politics by other means. When the Court is conservative, as it is now, liberal legal scholars tend to urge judicial restraint; when the court is liberal, it’s conservatives who urge restraint. Frankfurter’s principled opposition to judicial activism is unusual, and serves as a cautionary tale about the limits of that position….

Felix Frankfurter may have been the most divisive Justice ever to serve on the Court. The legal scholar Cass Sunstein has recently demonstrated that, in 1941, the Court changed “from a court that had operated by consensus, with very few separate opinions, into something closer to nine separate law offices, with a large number of dissenting opinions and concurrences, and with a significant rate of 5–4 divisions.”

The change is sudden, dramatic, and puzzling. It may turn out that a divided Court is the legacy of Felix Frankfurter. But anyone seriously interested in pondering that legacy has got to wonder: Who raided his papers?…

When the Senate confirmed Rehnquist’s nomination [to the Supreme Court in December 1971], Nixon called Rehnquist to congratulate him. He said, “Be as mean and rough as they said you were. Okay?” Rehnquist took a seat on the Court in January, 1972. In August, scholars using the Frankfurter papers at the Library of Congress began reporting to the staff that a great number of documents were missing.

At first, the staff at the library assumed that the missing items had been misfiled, but in November, 1972, the library checked the entire collection against the finding aid as best it could. “We realized we had been robbed blind,” one librarian said. The missing documents appeared to have been carefully chosen: they included the most significant items in the collection. The library called the F.B.I….

In March, 1974, without officially closing the case, the F.B.I. effectively ended the investigation….

Paper burns. Texts vanish. E-mails are deleted. Sometimes even sneakier things happen. Not a single page of the missing papers of Felix Frankfurter has ever been found.