Supreme Court justices work for the government but treat their official papers as private property. As my frequent reporting partner Jodi Kantor wrote this month, that means they can withhold them from the public until long after they have died, or destroy them entirely.
In a brief filed last week in a federal appeals court, the Trump administration twice cited Jodi’s article to argue that presidents should have the same power. A 1978 law requires White House documents to be preserved and disclosed relatively soon after the president leaves office. The brief says that law violates the Constitution.
“The justices recognize that disclosing information about their deliberations would impair the functions of the Supreme Court,” the brief said.
“Congress has not seen fit to regulate the records of judges and justices in the same way as with the president’s records,” the brief went on. “And for good reason: Such an unprecedented intrusion on judicial independence would run roughshod over the separation of powers.”
Why, the brief asked, should the president’s papers be treated differently?
The argument has some force, though you could flip the question around. Why shouldn’t Congress be able to subject the justices to at least some constraints over what they can do with their documents? And does the fact that Congress has not enacted such a law mean that it is powerless to do so now?
For most of the country’s history, it was generally assumed that the papers of presidents and justices were their private property, and that they had total control over what became of them.
That changed in 1978, when Congress passed the Presidential Records Act. It required presidential documents to be preserved and disclosed, for the most part, after five years, and with a few exceptions, no later than 12 years after the president left office.
In the half-century since, presidents of both parties have complied with the law, including President Trump during his first term. Scholars and journalists have drawn on the documents to understand and explain events of surpassing importance in U.S. history.
In April, though, the Office of Legal Counsel, the unit of the Justice Department that advises the executive branch on the law, issued a 52-page memorandum declaring the 1978 law unconstitutional.
Its first page featured a key argument. “Just as Congress could not constitutionally invade the independence of the Supreme Court and expropriate the papers of the chief justice or associate justices, Congress cannot invade the independence of the president and expropriate the papers of the chief executive,” T. Elliot Gaiser, the head of the office, wrote.
The 1978 law, Gaiser said, was a product of post-Watergate overreach that violated the separation of powers and chilled the president’s advisers from offering candid advice.
The day after that memo was issued, David Warrington, the White House counsel, circulated guidance to presidential staff members saying that the law no longer applied, but that most of the records it covered should continue to be retained. The exception was text messages, which he said must be preserved only if they are the “sole record of official decision-making.”
The guidance did not address when, if ever, the documents would be disclosed.
Trump has a history of treating White House records, including classified documents, as personal property. He brought boxes of them to his Mar-a-Lago residence in Florida at the end of his first term. That led to an F.B.I. raid and criminal charges, which were dismissed after Mr. Trump was re-elected to another term.
Soon after the new memo and guidance were issued, historians and others sued, saying that the administration had to follow the 1978 law.
Judge John Bates, of the U.S. District Court in Washington, started his opinion with a quotation from George Orwell’s “1984,” which was not a good sign for the administration. (“Who controls the past controls the future; who controls the present controls the past,” Orwell wrote.)
Judge Bates, who was appointed by President George W. Bush, said the law was likely constitutional. He ordered administration officials to comply with it while the case moved forward, saying that he would not second-guess Congress’s determination that “citizens ought eventually to have access to these records of presidential activities carried out in their name.”
In a footnote, the judge addressed a hypothetical law requiring Supreme Court justices to preserve and disclose their papers.
“In the judicial context,” Judge Bates wrote, “courts would have to consider implications of a disclosure provision based on the life tenure of federal judges, the multi-member nature of the Supreme Court and the potential impact of disclosure on due process.”
The presidential records case will be argued before the D.C. Circuit next month.
Lawyers for the administration have made notable strategic choices in the appeals court. Although they have plausible arguments on questions like standing that could tank the case, they focused solely on what they said was congressional intrusion into the executive branch that violated the separation of powers, echoing recent Supreme Court decisions.
“Congress cannot force the president to live in a fishbowl,” they wrote, apparently hoping to present a streamlined case to the justices should they lose the appeal.
At a Federalist Society panel discussion of the case on Monday, one participant cited Jodi’s article to argue that the 1978 law had gone too far. Imagine a Judicial Records Act requiring relatively prompt disclosure of the justices’ papers, said the panelist, Michael Edney, who served as a lawyer in the Office of Legal Counsel in the George W. Bush administration.
“That would be a non-starter,” he said.
Another panelist, Christopher Fonzone, who led the Office of Legal Counsel in the Biden administration and has written that the 1978 law is constitutional, called Edney’s analogy “a nice debater’s point.” But he added that “it really feels like a very different case to me in terms of its actual constitutional implications.”
Fonzone did say that “the public and the nation has an interest in the preservation of Supreme Court records, so Congress probably does have some ability to preserve those.” Whether Congress could dictate when they must be disclosed, he added, was another matter.
Other Legal News
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An extraordinary interview with Judge Patrick Schiltz of the Federal District Court in Minnesota on the “grave threat to the rule of law” posed by the Trump administration’s actions in Minneapolis last winter.
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I looked at the Supreme Court’s rejection of Trump’s plan to make it harder to vote by mail, the latest in a series of rebukes to the administration.
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The Supreme Court’s approval rating dropped to 43 percent, down four percentage points from July, according to a new poll from Marquette Law School. Large majorities favored a strict ethics code and term limits for the justice, while 53 percent supported expanding the size of the court.
Mailbag
Arguing Your Own Supreme Court Case
Has a self-represented attorney or non-attorney ever presented an argument before the Supreme Court? — Sherman Rattner
Yes, and some of those appearances have been memorable.
In 2004, Michael Newdow, an emergency room doctor and nonpracticing lawyer, argued that the phrase “under God” did not belong in the Pledge of Allegiance, which was recited at his daughter’s school. He lost on technical grounds, but his argument was widely considered a triumph.
Linda Greenhouse, who covered it for The New York Times and was not given to hyperbole, wrote that “no one who managed to get a seat in the courtroom is likely ever to forget his spellbinding performance.”
At one point, the courtroom audience broke into applause, which is rare. Chief Justice William Rehnquist said the courtroom would be cleared “if there’s any more clapping.”
In 2010, Margie Phelps, a lawyer and a member of the Westboro Baptist Church, persuaded the court to protect its hateful speech at military funerals by calmly explaining that the First Amendment required it. (The church contended that God was punishing the United States for its tolerance of homosexuality. Its members would hold signs with messages such as “Thank God for dead soldiers.”)
At least one current justice lost a case to a lawyer representing himself.
In 1998, in a case about the limits of attorney-client privilege, James Hamilton persuaded the court to protect notes he had made of a conversation with a client who later died by suicide. The lawyer on the losing side was Brett Kavanaugh.
A 2024 article in The St. Mary’s Law Journal by Kyle Persaud identified 84 arguments since 1945 in which parties had represented themselves, including 12 by non-lawyers. In 2013, the court revised its rules to let only lawyers present arguments.
The last non-lawyer to argue before the court was Samuel Sloan, who represented himself in a 1978 challenge to the Securities and Exchange Commission’s practice of repeatedly suspending trading in stocks. His adversary was Harvey Pitt, who was then the agency’s general counsel and would later serve as its chairman.
Several lawyers volunteered to represent Sloan, but he turned them down.
“It wasn’t on an ego thing or anything like that,” he told The Associated Press in 2013. “I wanted to win the case. I was convinced I couldn’t win the case in any other way but to argue my own case.”
Sloan’s written brief, The New Republic wrote, was “a singularly absurd and complicated document.”
But his oral argument was a different matter. It was, Justice William Brennan said, “among the best of the term.” Sloan won 9 to 0.
I would love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
Closing Argument
A Bold Court Balks
The Fifth Circuit does not hesitate to tackle tough questions, but it ducked an intriguing one on Monday: Is “My 600-lb Life” a reality show?
Only one member of a three-judge panel made up of prominent Trump appointees, all plausible candidates for a seat on the Supreme Court, was prepared to offer a view about whether the show, which follows obese people trying to lose weight, qualified as “reality TV.” But all three surveyed pop culture in the process.
The answer to the question mattered because the company that produced the show, Megalomedia, wanted its insurance company to defend it from lawsuits from people who said they had been injured during filming. The policy covered many things, but it excluded “reality shows.”
Megalomedia argued to the appeals court that the phrase was ambiguous, and that the insurance company should pay. The majority refused to address that claim because the production company had conceded in the trial court that the show was reality TV.
That, Judge Kyle Duncan wrote for the majority, amounted to a “180-degree reversal” that was “worthy of an M. Night Shyamalan movie.” He added that the company had done “its Regan MacNeil impersonation in our court,” which was a reference “The Exorcist,” the 1973 movie.
That second reference might not have been spot on, as Linda Blair’s head did a 360-degree spin.
Judge Duncan hinted that the company would have lost had his court reached the merits. When people hear the term “reality show,” he wrote, “they do not throw up their hands and say, ‘Do you mean “Monday Night Football?”’”
Judge James Ho, in a concurring opinion, said he was “reminded of countless other questions that have been the subject of good-natured public debate.”
Among them: “Is a hot dog a sandwich? Is cereal a soup? Is ‘Die Hard’ a Christmas movie?” (My view: no, no and yes.)
In dissent, Judge Andrew Oldham said the court should have answered the reality-show question. He cited, among many other things, a Supreme Court ruling blocking the deployment of the National Guard in Illinois. There, he wrote, the majority ruled on a ground the state had renounced in the trial court.
While the Supreme Court’s ruling was “troubling for many reasons,” Judge Oldham wrote, “after that decision, it is difficult to say that appellate courts are somehow bound by the litigating position a party takes in the district court.”
He concluded that the exclusion was ambiguous, as it could cover documentaries, “Jeopardy” and Fox News. Under Texas law, he added, the tie goes to the insured, meaning the production company should have won.
Under the majority’s reasoning, though, it lost, thanks to its inconsistent arguments.
Please send me your comments on the papers of the president and the justices, representing yourself in court, whether “Die Hard” is a Christmas movie, and anything else, at [email protected]. See you next week. — Adam
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