Subscribe
Share
Share
Embed
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I am excellent and confused.
J. Aughenbaugh: Why are we confused this morning?
N. Rodgers: I know that a few weeks ago, and by the way, in my world, time is elastic, so this could have happened yesterday, and it could have happened 10 years ago. But I'm sure it was a few weeks ago, I think.
J. Aughenbaugh: Yes.
N. Rodgers: But anyway, the Office of Legal Counsel for Donald Trump came out and said, "The Presidential Records Act is unconstitutional." Librarians everywhere went, our ears went up like Scooby-Doo, we were like, "What did you say?" Because the Presidential Records Act is now. What happens with the presidential records is president has a presidency for four years or eight years, whatever, however many years. There are certain records that get turned over to NARA, which is the National Archives. They get turned over to the NARA, and the archives keep some of it, and some of it gets returned back to the president. What he had for lunch on a given day is not generally kept. But I think the Nixon White House tapes would have been in there if they had. I don't know whether they ended up getting turned over or not, but that thing, the records of things that happened in the office, decision-making, who came to visit, all that. All of that are considered records of the people. The Office of Legal Counsel don't think that's constitutional. I don't think it's up to you. Then I called Aughie, " Hey, Aughie, is that up to them?" Aughie said?
J. Aughenbaugh: No. Basically, the Trump administration's argument was that when Congress passed that law, it was violating separation of powers. Why? Because neither the president nor the judicial branch gets to tell Congress what it can do with its work papers. Why should Congress be able to go ahead and tell the occupant of the office of president to do that? Now, since that legal memo was issued, a bunch of people have challenged the constitutionality of the memo. As we are recording, near the end of May 2026, a federal district court judge has ruled that more than likely the law is constitutional and the Trump administration has not decided if it's going to appeal to the DC Circuit Court of Appeals, or even if it's going to appeal to the Supreme Court.
N. Rodgers: I think Donald Trump wants all of his papers probably in his library. He probably doesn't want any of them held in the public sphere. The thing is, where the Office of Legal Counsel has gone wrong on this, to my opinion, and then we're going to go on to what we're really interested in here today. But they misunderstood. In the Constitution, it says there will be a congressional record and a senate record, and they will be published "from time to time" because the founding fathers did not believe in giving actual dates or times for anything. They left everything vague. They say from time to time, they will actually publish what they have done so that people can keep an eye on them. This is in line with that. The Presidential Records Act was in line with that, in line with the idea of, hey, if the Congress is supposed to report on what it's done occasionally, maybe the president should have to report on what he's done occasionally beyond the State of the Union. Then I said to Aughie, hey, what about the Supreme Court? Aughie said, " Sit down, young Padawan, for this is an interesting question, which we must pull apart piece by piece, because it's not that simple, because the work product of the justices is released. It's called opinions, and they are released whenever they feel like it.
J. Aughenbaugh: When a case gets decided, we know it's been decided when the Supreme Court hands down a decision and then publishes the decision.
N. Rodgers: That's technically their work report.
J. Aughenbaugh: First of all, listeners, there is no federal law that governs what Supreme Court justices must do with their papers when they leave office. The short answer is no. Again, at first glance, you could go ahead and say, why should we care?
N. Rodgers: We should care because we all love reality TV.
J. Aughenbaugh: Beyond what Hitchcock referred to as this almost inane desire of human beings to watch others. We should go ahead and care in part because, again, modern democracies are predicated on an explicit social contract. We give up rights we have in nature in exchange for the government providing safety, security, other, if you will, public goods. But how can we judge how well the government provides those public goods if we don't have access to their records? Cause it's more than just laws or bills passed by Congress or laws signed by presidents, or rulings handed down by the justices. For many of us, how they do their work? To whom did they consult? Who did they meet with? Are they engaged in a deliberative process, or are they throwing spaghetti against a wall and hoping that it sticks?
N. Rodgers: One of the most interesting things you can listen to, are the tapes of Lyndon Johnson's phone calls to a variety of people during his presidency, when he talked to J. Edgar Hoover about the assassination of Kennedy and how that was all going to be handled, that is the, forgive my language here, sausage making that is fascinating because it tells you who these people really are.
J. Aughenbaugh: Yes.
N. Rodgers: Theoretically, in a justice's opinions, you shouldn't really be able to tell who they are from how they write their opinion. You can tell some of their judicial reasoning, but you can't get their personality, which I think makes them far more interesting people.
J. Aughenbaugh: If you think about Justice's collection of papers, it's not just a nice, neat, tidy file of finished opinions. It can include early opinion grafts, memos distributed among the justices. As we've explained in a previous podcast episode, the court will hear oral arguments, then they go into conference. It's a secret. The only people in the conference are the justices. They take a vote, then they assign majority dissenting opinions. As those opinions get circulated, the other justices will respond, so those memos in response will tell us a lot. Each of the justices rely on their law clerks to produce what's known as bench memos before they even sit at the bench for an oral argument. Most of the justices are aware of the case facts, the legal issues. Who argued what at the lower court level? What's the relevant constitutional clause? What are the relevant laws? What's the evolution ban, etc?
N. Rodgers: They can't ask good questions unless they have all of that. They can't.
J. Aughenbaugh: If you think about all these papers, it's more than just idle curiosity. It's more than just reality TV. For those of us who study the court, we want to know how they go about doing their work. Because, again, it is a branch of the federal government. Because we, as the public, don't get to participate in the selection of these judges, we might want to know how our elected officials who have picked these people did they pick wisely? Did a president pick a couple of people to serve on the Supreme Court who couldn't handle the work or who were caddy, nitpicking, annoying colleagues? There's a reason why the Supreme Court isn't functioning very well. These are all things that, as a voter, as a citizen, we might want to pay attention to. Not everybody, because I understand that some folks, the infamous silent majority, are like, I'll show up for election day. I really don't have very many opinions, blah, blah, blah. I get all that.
N. Rodgers: We get that we're scholars, and that's a little different because scholars want to know everything. We're like, what ink did they use to write the paper? Because that's the person we are. But can I just say that from your notes, I learned something that I had no idea happened? Which was notes passed along the bench during oral arguments.
J. Aughenbaugh: Arguments. Yes.
N. Rodgers: In Justice Blackman's collection.
J. Aughenbaugh: Yes.
N. Rodgers: I think that would be hilarious. The nine of them sitting there, and somebody writes a note, and then they pass this down to so and so. You get to look at it, and it's like, "Is that the ugliest tie you've ever seen or what?" Just, and I know it's not that note, but mentally, it made me think of that thing in school where you're passing notes, and then the professor or the teacher says, "What are you doing?" Would you like to read it to the class?" You're like, " No, I'd rather not".
J. Aughenbaugh: It's so important.
N. Rodgers: It's not that note that they were passing along. I'm sure it was more like remember to ask this question, or that was a really good question you asked. I'm going to follow up with this, or it's probably stuff like that.
J. Aughenbaugh: But the rest of this episode, listeners, we're going to discuss some of the issues that have arisen because there is no federal law requiring the papers of federal judges to be turned over, like presidential records. We're going to delve into some really, at times, hilarious examples. At other times, what are some plausible, legitimate concerns that the justices have had? Then, we're going to offer a brief point of comparison to what our friends in Canada do, which might be a middle ground approach from the turn everything over to don't turn anything over.
N. Rodgers: Or have no rules.
J. Aughenbaugh: There's a spectrum. You've got many Supreme Court justices who are, I can do whatever I want with my records.
N. Rodgers: I can donate them to my alma mater. I can burn them in the fireplace.
J. Aughenbaugh: Yes. We're going to get to a lot of these examples. Versus an approach of.
N. Rodgers: You are required to.
J. Aughenbaugh: You work for the public, so you must go ahead and turn over everything versus what I would argue is a more middle ground approach that we see up in Canada. But first of all, some of the more salacious things.
N. Rodgers: Oh my gosh. Can I bring up one other thing by Harry Blackman? Because he reminds me of you. He gave letter grades to the oral advocates appearing before the court. I love that. I would love it if Justice Aughenbaugh was sitting up there, and he's like, I'm going to give this guy a C. He's not bringing a good argument. I'm not feeling it. I don't think he's answering questions well. You know what I mean? I just think you and Harry Blackman, professors to the core in the sense of I'm going to actually grade the lawyers. Now, to get to be a lawyer before the bar is not a simple thing. You have to be admitted to the Supreme Court bar. If you're being graded by this person, and there's anything other than an A, you have failed.
J. Aughenbaugh: We should note this about Harry Blackman. When Harry Blackman retired from the Supreme Court, this is beautiful. You want to talk about a pack rat.
J. Aughenbaugh: Harry Blackman.
N. Rodgers: Again, by the way, like you, little bit of a packrat.
J. Aughenbaugh: He had over 1,500 boxes of papers, 1,500 banker boxes of papers, In these, it covered the gamut, notes from the Justice' private conferences, carpool memos written by his clerks and other clerks, notes passed along the bench during oral arguments, and as Nia already mentioned, probably our favorite, he gave letter grades to those lawyers that appeared before the court.
N. Rodgers: I would be so embarrassed to find out that I was You know what I mean? Like, that would later on, you would just be like, ouch.
J. Aughenbaugh: Justice Douglas donated all of his papers to the Library of Congress, and rather controversially, his papers contain notes that he took during the weekly conferences about how his colleagues actually voted.
N. Rodgers: Notes of not the final vote.
J. Aughenbaugh: Yes.
N. Rodgers: Oh, the interim vote, ooh, ouch. That could be political, couldn't it?
J. Aughenbaugh: Yes.
N. Rodgers: Not political, but that could be tough.
J. Aughenbaugh: Yeah. Then sometimes, other collections have Henri.
N. Rodgers: That's also the department meeting. writing down verbatim exactly what our colleagues say versus what their statement is later.
J. Aughenbaugh: Yes.
N. Rodgers: Ouch, that could be painful.
J. Aughenbaugh: William Brennan's papers had letters, journals, personal correspondence, including a letter he received from a Harvard law student by the name of Barack Obama, who wrote to Justice Brennan in the early '90s offering some reflections on Justice Brennan's judicial opinions.
N. Rodgers: Tell me that's not you, Bliss.
J. Aughenbaugh: Seriously, yeah.
N. Rodgers: Tell me that's not Bliss. This thing where people are like, Oh, I'm a humble president? No. Nobody humble gets to the presidency. Barack Obama wrote an email to William Brennan telling him what he didn't like about his judicial opinions, like seriously, my dude.
J. Aughenbaugh: Now, because there's no federal law governing what federal judges can and cannot do with their personal papers, we've got the gamut.
N. Rodgers: This isn't more or less treated as personal property, it's like, these are mine. I can do with them whatever I want to do with them.
J. Aughenbaugh: Yes. Actually, there is a reference in the Trump administration Legal Counsel memorandum, highlighting the fact that there is a difference in regards to presidential papers versus federal judge papers. Now, the earliest that most scholars agree the earliest Supreme Court Justice who actually donated their papers was Justice Louis Brandeis, who began to donate some of his papers before he even retired from the court. He gave it to the University of Louisville, which has a law school named for him. Other justices, Hugo Black.
N. Rodgers: 1939. So that would have been some controversial.
J. Aughenbaugh: Yes, yeah because he served on the New Deal Supreme Court.
N. Rodgers: There was, I assume he at least had an interest in preserving the records of that time.
J. Aughenbaugh: On the other hand, you have the opposite extreme, Hugo Black. When Hugo Black retired, he had his son burn his conference notes before he died.
N. Rodgers: I know. Why would you do that? Why?
J. Aughenbaugh: He did not want to embarrass any of his colleagues.
N. Rodgers: Yeah, but couldn't he have just said, Hold on to these, and after everybody's dead and gone, you can give them to somebody.
J. Aughenbaugh: Now Nia brings us to our next issue, the timing question. Some justices, when they have died, have had their papers immediately donated and made public. Thurgood Marshall, died in January, 1993. His papers had been donated to the Library of Congress when he retired in 1991. The instruction said they would be open to the public upon his death. When he died, four months later, the Library of Congress opened up 173,000 document collection of Thurgood Marshall's papers, and immediately, the media and scholars started reporting, some of the more salacious details found in those papers.
N. Rodgers: Which there would have been during Thurgood Marshall's time on the court. There would have been all kinds of stuff. But what I found interesting in your notes was, he said, upon my death and nine days after he died, the scholar was like, upon his death, I'd like to look at these papers, 173,000 documents.
J. Aughenbaugh: Yes.
N. Rodgers: He documented everything.
J. Aughenbaugh: In response, the justices of the Supreme Court asked Chief Justice Rehnquist to write a letter to the librarian of Congress expressing how the court thought that the librarian Congress used bad judgment in granting access, and the librarian refused to reseal the files, saying that he was obligated to honor Justice Marshall's explicit wishes. Harry Blackman, we already talked about.
N. Rodgers: Wait, can I pause here and defend the librarian for just a moment? When you get a donation to a library, and this happens frequently. Rich people. Let's say that John Aughenbaugh somehow becomes a rich person. I don't know how that would happen. You marry an heiress. Who knows? Whatever. You buy a Gutenberg and you decide to give it to VCU? You say, people can only view it on the first Thursday of every month. That is my wish during this donation. VCU is obligated to only show it to people on the first Thursday of every month. Like, and you can't just say, yeah, but everybody else can't come on that day and we'd like to show it some other day. No, that's not how this works. When people give donations and people do that all the time, in case you're wondering listeners, people attach rules or petitions, yes.
J. Aughenbaugh: The institution has a choice.
N. Rodgers: We do not take the thing. We don't want your stupid Gutenberg Bible if we can only open it on the first Thursday of every month or Heck, yeah, we'll take your Gutenberg Bible and we'll do exactly what you say.
J. Aughenbaugh: Yes, because it is a legal transaction. Right. And this is what a lot of people don't understand. It is a legal transaction. In defense of the librarian of Congress, it was a legal transaction, justice control made that as a condition.
N. Rodgers: I understand Rehnquist's point of view that wait, there are people who are still on the court who were on the court then and are going to have their stuff involuntarily made public. So I get it. I get both sides, but the librarian was just not in a position to say, sorry, I mean, we can't reseal.
J. Aughenbaugh: On the other hand, after well, roughly at the same time, some of the justices have been very restrictive in their terms. Former Chief Justice Burger said that his papers could not be released until 10 years after the last justice who served with him had passed away or 2026, whichever comes later. Justice O'Connor was his last living colleague. She died in December of 2023, meaning that Burger's papers won't be released until 2033. Rehnquist. He died in 2005, said that his papers, which he donated to the Hoover Institution at Stanford, not a big shock because that's where he got his law degree, would remain closed until the last of his colleagues on the court had died.
N. Rodgers: Still living are several members of the current court that served with Rehnquist because-
J. Aughenbaugh: Only Clarence Thomas.
N. Rodgers: Oh, okay. Upon Clarence Thomas' death, Rehnquists papers.
J. Aughenbaugh: Or Anthony Kennedy?
N. Rodgers: Because Anthony Kennedy is still alive, and he's retired. When those two justices pass, then we will be able to read Rehnquist's papers.
J. Aughenbaugh: Yes. Still you've not-
N. Rodgers: It's to not embarrass your living colleagues.
J. Aughenbaugh: Colleagues. That's right. Now, one of the most restrictive is Justice David Sutter. He said his papers could not be open until 50 years after his death. He died last year. In fact, about a year ago, May of 2025, which means his papers won't be released until 2075. Now, let's be very clear.
N. Rodgers: This is a really long time.
J. Aughenbaugh: These restrictions make it difficult for scholars in the media to get access okay, to the justice's papers, but there have been leaks. I mean, seen, for instance, the New York Times coverage earlier this year of the Supreme Court's ruling on the Obama Administration's clean power plan, the infamous CPP, but leaks at the Supreme Court are infrequent. The Supreme Court does not leak like the White House or Congress. Adobe was crazy wild. Wild. Like that just doesn't happen.
J. Aughenbaugh: Happen, right?
N. Rodgers: Which is why some people thought it was deliberate because it's so rare. It's so rare that it ends up feeling like somebody's pulling the lever intentionally. Really, let's say that you're a clerk. Let's say John Hagabas clerk to pick a justice.
J. Aughenbaugh: Let's go ahead, Elena Kagan, right?
N. Rodgers: That's what I was going to pick for you. You're her clerk. You're Elena Kagan's clerk and she's running around doing all kinds stuff. Blah, blah, blah, M. If you blab, and they figure out it's you, you will never work in this town again. Yes. Like not just DC, but you will never work at that level of legal Yeah, 'cause you can't be trusted. Legal stuff ever get right. So even if you become even if you finish law school and you are the top of your class, you are the best of the best of the best of the best. Yeah. You will still not get hired by the highest end firms because they'll be like, that guy is toxic. He ratted out, Kagan. He will rat you out. Like you become immediately untrustworthy. That's a really tight closed community. You asked the clerks what somebody had for lunch, and they're like, I'm not going to tell you that. I don't know, they don't want to tell you anything because they don't want to be seen as a person with loose lips. Like, nobody wants that kind of lawyer and nobody wants that kind of clerk.
J. Aughenbaugh: Because, again, so much of the legal practice is based on trust.
J. Aughenbaugh: If the Supreme Court can't trust you, then how can we go ahead and say to one of our clients, you should trust, one of our attorneys? How can you go ahead and become legal counsel for a corporation or government agency when you already have demonstrated that there might be times where you will break the trust of those who are relying upon you to give them legal counsel in usually some of the worst times of their life, right?
N. Rodgers: In many instances, some of the most expensive times of their life life. None of that is cheap. They need to know that the guy they're paying a lot of money to, the guy or the woman they're paying a lot of money to can keep their counsel. I'm assuming that some of the leaks, I'm not trying to be ugly or cast dispersions on my tribe, but some of the leaks might come from librarians who read things and go, "Oh, that is too good for people not to know." But we also take a lot of that very seriously because if they figured out that it was the librarian that leaked it, the family would remove the papers. The family would say this institution cannot have our papers anymore. They don't deserve them because they've got a librarian in there, it's going around telling people what's in the papers. I see as a big deal in these organizations.
J. Aughenbaugh: In these organizations. But in addition to the clerks, you have a whole bunch of other staff, many of whom are not paid all that much money.
N. Rodgers: Patients.
J. Aughenbaugh: Now, in contrast.
N. Rodgers: The American Wild West system of doing whatever the heck you want with your papers.
J. Aughenbaugh: Papers. I want to offer to our listeners what goes on up in Canada. This is a recent decision in the last couple years. The Supreme Court of Canada has a formal agreement with the librarian archives of Canada to preserve judges' case files. The librarian archives has to protect them for 50 years to ensure the preservation of judicial history. This is the part that I really like. Because, again, it's the preservation of history. This podcast in part is founded on this idea that government documents should be preserved and read, so that the democracy. Access is important for democracy.
N. Rodgers: Yeah.
J. Aughenbaugh: Now, the documents related to discussions between the judges after a hearing, but before a public ruling are kept secret to ensure confidentiality during the judicial process. Again, I think there is an important value here. How can you feel comfortable working on that small body that is predicated on collegiality if you don't think you can trust,what you have to say won't go public.
N. Rodgers: I agree.
J. Aughenbaugh: Now, previously, the judges had control over their personal files. But they achieved a compromise. Final judgments, bench memos, filed case documents are public record and are published.
N. Rodgers: Bench memos. Interesting.
J. Aughenbaugh: Yes.
N. Rodgers: All the filed case documents make sense. That's all the courts and the briefs to the courts and all the other stuff like that. That should be public because that's part of the case filed, so that's published immediately as soon as the case is finished.
J. Aughenbaugh: But confidential workie papers and correspondence of the justices are remained secret, not public for 50 years.
N. Rodgers: But they're turned over. You turn over all that stuff and then it gets locked down for 50 years, 50 years, that's a long time. Then you get all of the background of the case.
J. Aughenbaugh: Yeah. Again, the way to think about this, listeners, is that the Canadian system is a middle ground between full disclosure of all justice's records and papers, and then the American approach, which leaves it completely to the discretion of the individual justice. I can and I know from my own personal experience, as some of our listeners, Nia, may know, my dissertation was on the administrative law work of Justice Byron White. When Byron White retired, his provision was his papers would remain closed. However, scholars who were doing research that might touch upon his papers could request from his office because when Supreme Court justices retire, they're given a clerk and they get a clerk every year, and White's clerk would get to decide which scholars got access. I made a request.
N. Rodgers: Hey, listeners, you're about to hear how you can push Aughenbaugh's small red candy like button of annoyance. What did they say when you requested access to his papers, Aughie?
J. Aughenbaugh: I was denied because it was determined that my research project did not merit access to his papers.
N. Rodgers: Pressing these small red candy like button of annoyance. That's a lot of power to put in that clerk's hand to say, I don't think Aughenbaugh's project is serious enough to give him access to these papers. Who are you to decide? Side note, didn't you meet him later, and he was sorry that he hadn't?
J. Aughenbaugh: No. That wasn't him. But what was interesting was when I did go up to interview to get access, I was shown around the Supreme Court and I met a number of the then current Supreme Court justices, including Clarence Thomas, Andrew Day O'Connor, and the then Chief Justice William Rehnquist. I actually won a bet. Justice Rehnquist bet on everything. He played poker every week. He had all these small bets that he would do with people. He bet me that I did not know the origin of the mascot of my alma mater, Virginia Tech. I told him, I did. He disagreed with me, and then he sent one of his clerks to the Supreme Court library to research which of us was correct, and I was, and I won $1 off of Chief Justice Rehnquist.
N. Rodgers: You didn't get access to the papers that you needed for your dissertation, but you did get $1 from Justice Rehnquist?
J. Aughenbaugh: Yes.
N. Rodgers: What do you think about? Are you in favor of the Canadian system? Are you in favor of the American system? Are you I guess it would be a little of both because you're that guy?
J. Aughenbaugh: I'm that guy. I like the Canadian system in part because I'm torn. On the one hand, I believe that the work that the Justice is do is on behalf of the public, and the public should have access to those materials. As a scholar, access to such material is essential to the work that we do. Part of my mission vocation, if you will, is to explain what courts do. I can do that better by having access to these materials. On the other hand, the court is not a political institution like the Congress and the presidency. Nia, as you pointed out, the work that the justices do, okay, requires the kind of deliberation and confidentiality and secrecy that I think would be hindered if we had immediate access, particularly in regards to people that are currently serving on the federal courts. I think there is a middle ground approach, and I like what the Canadian system does because they've made a very clear distinction between what they believe are public records versus the deliberation and confidentiality that you need in legal cases. I'm a little off put by the 50 years.
N. Rodgers: Yeah. That's part of my take is that 50 years is a very long time. I'm not sure that I wouldn't make that 20 years or 25 years. You're still giving plenty of time for an overturn of a press. You're still getting plenty of time for there to be further legal machinations. But also, people who are alive remember what happened, which 50 years might not be the case. It might be that that's a thing that they didn't actually experience or remember. It's something they've read about in scholarly work. I think that's a long window. I understand. I actually I can't remember which justice you said was 10 years after the death of his last colleague. Is that Rehnquist?
J. Aughenbaugh: That was Burrows.
N. Rodgers: Burrows. I almost think that rolling because then something would be coming open probably pretty regularly, things would be coming open that you could read. But I think 50 years is too long. However, I do take your point that they're not a political institution, but they're paid like they are. They're paid by the American taxpayer. To say that they then own the intellectual work that goes into the, I understand why they own their personal papers. Their personal documents of their travels and their relationship, and all those other kinds. All of that to me is personal. I don't know whether I would even think that should have to be turned in anywhere at all. But anything court related? I'm like, "You know that? I paid for that." I paid for that intellectual work. Then I come back to, but professors get paid and they own their intellectual work. Would it change how professors run the classroom if they didn't own their professional, if every time you left a job, well, you haven't left a job in 25 years? But if you left VCU right now, tomorrow, which I would prefer you didn't, if I get a vote, you could take your intellectual property, all of your slides and your notes and all that other stuff with you to teach courses somewhere else. VCU doesn't own that property. There's a part of me that thinks that's too bad because many, many, many students have learned so much from you over the years. It's too bad that some of that would be lost if you left or retired?
J. Aughenbaugh: I understand my position is somewhat hypocritical because as you just pointed out, the flaw in my logic in saying that the papers, some papers of the Supreme Court should be turned over to the public immediately runs counter to the fact that as a professor, and it's even in my syllabi, my course syllabi, my lecture notes are my intellectual property. VCU doesn't own them. In fact, I pushed back.
N. Rodgers: Unless they request that you build a course for them, which they have done on a few occasions, right for Gen Ed courses. The professor doesn't own that material.
J. Aughenbaugh: I think about how I and others have pushed back against that model because we view it as our intellectual property, right?
N. Rodgers: Is this their intellectual property? See, that's where I'm at the hypocrisy, but I'm willing to make that hypocrisy in part because of how much they're paid and in part because of how much leeway they have. That there needs to be some level of accountability. If we're paying you to do this intellectual work, we need to know that you did it and you didn't just ask AI.
J. Aughenbaugh: Well, let me throw something else at you, Nia. You mentioned this earlier on in the podcast.
J. Aughenbaugh: Think about the number of meetings you've been to where we've had to take minutes because it's required by state law. But the minutes are so vague, and thankfully they are because we would not want our statements made to our colleagues admit to be made public. I got to tell you, I would be less likely to go ahead and say, and at times I do this, and if there are students who are listening to this podcast, they know I do this because I do it in the classroom. I would be less likely to go ahead and take an extreme devil's advocate position if I knew that what I said could be turned over to the public and reviewed and critiqued misinterpreted.
N. Rodgers: Exactly. You're lacking context. There's a part of me that gets why they don't want to have to turn everything over. However, if I could find Hugo Black's son and stomp on his toes and make his pillow warm, I would because he was doing what his father wanted, and I get that, but there's another part of it, it's like, no, those are important well, particularly insights into him into the court of his time, into all of that.
J. Aughenbaugh: We just touched upon some. Hugo Black served in one of the most important errors of the Supreme Court. He was a controversial figure. Hugo Black never finished law school. He got a certificate of attendance from the University of Alabama law school.
N. Rodgers: He showed up a bunch.
J. Aughenbaugh: He was controversial because we found out that when he first started in politics, he was involved with the KKK. He was also involved in a Supreme Court that was in a transition from being antagonistic to the New Deal to embracing the New Deal. Then he is a key member of the Warren Court. Then he falls out of favor on the Warren Court and with liberals because he's too much of a strict constructionist.
N. Rodgers: He serves 34 years on the court. If nothing else, he sees 34 years of American political arc.
J. Aughenbaugh: To have all his papers. The fact that it was so indiscriminatory. There was very little effort made to distinguish between his personal correspondence and his legal work. Again, it would require some line drawings, and I know that's difficult, but that's what we do in government. We draw lines. We go ahead and make distinctions between this is good and this is something that we want to aspire to versus we don't really need to know that or the downside would be too much. I get it. Hugo Black's son did what his dad asked him to do. But, wow, that's a huge chunk of history and an important era of the Supreme Court that was basically lost.
N. Rodgers: Sorry. As a librarian, I feel it incumbent to say, there is no such thing as a not useful paper from someone. Because if nothing else, it tells you about the time in which they lived and the things that were important to commit to paper or files or whatever, which is why public government documents exist. They exist because we don't all experience the same world at the same time. I promise you, I'm not living in the same world that Jeff Bezos is living in. I'm just not. The things that concern me and worry me are not the things that concern and worry him. Both of our papers would be important because of that. 200 years from now, it would be important for historian to look at Jeff Bezos' papers and my papers to get two very different slices of American life. I like that the Canadians are like, no, we need to preserve all of this. We need to preserve all of this and we need to protect people's privacy, but we also need to make sure that there is a record because too much of American history is guessing innuendo because we don't have enough records. Because for a long time, paper was too expensive, for a long time, a lot of people couldn't read or write. There's all these things. How many justices have there been? Is it in low hundreds, 100 and some, Wikipedia.
J. Aughenbaugh: I don't think we've hit 120 yet, have we? I should know this since I teach the courts.
N. Rodgers: 116. 116 people have served on the court. I'm assuming that Hugo Black is not the only one whose papers were lost or destroyed. Probably some of the earlier justices.
J. Aughenbaugh: Well, again, think about it. According to scholars, probably the earliest justice to turn over their papers was Louis Brandeis.
N. Rodgers: In 1939, which means a good 100 and some years without all those things lost. Two, I'm going to go back to something I said at the beginning, Aughie, because it's part of my take, which is, these are petty people, and sometimes I want to see the petty crap they said about each other. I find it mildly entertaining, and I do understand why you wouldn't want to release that in somebody's lifetime, because that would be hurtful unnecessarily. It would make relationships more difficult and already are.
J. Aughenbaugh: Me, I teach a course class every fall. The parts of the course that students tell me all the time that they enjoy the most is when I assign readings and the students find out that the justices can be as petty. Is anybody else?
N. Rodgers: But I would also bet that one of one of the favorite things that your students find out is the relationships between odd ducks like Scalia and Ginsburg or Thomas and Sotomayor, when you find out that they actually really like each other and are and you're like, what? How? No. Then you're like, because they're people. People have multitudes. People have dimensions.
J. Aughenbaugh: This was a couple years ago in one of my students after one of the readings, I asked them, what they thought about the book that I had assigned, and the student just went ahead and said, beyond all the academic theories, Aughie, etc. She said, what I was most heartened by was in the late 60s, early 70s, the second Justice Harlan and Hugo Black, who, in terms of legal philosophy were diametrically opposed. They took care of one another because both of them were increasingly frail and their bodies were breaking down. Justice Harlan was going blind. Hugo Black would make sure that his clerks would help Harlan's clerks read to him. All of the memos and all the opinions, etc. Harlan, once he found out that Hugo Black was gravely ill made sure that Hugo Black was taken care of, particularly after Hugo Black's wife had died. My student was just like, that's the thing that we should hear more of.
N. Rodgers: Humanness of the justices, their humanity and their internal relationships because I would never have thought Sotomayor and Thomas.
J. Aughenbaugh: We're thinking at Scalia's funeral, Ginsburg gave one of the eulogies, and Ginsburg told a fascinating story about how in the VMI case, where the Supreme Court held that the State of Virginia's a program of women leadership at a different university violated the Equal Protection Clause. Ginsburg had the majority opinion, and she told the story about how Scalia quickly wrote his dissent and gave it to her so that she could respond to his dissent in her majority opinion. She was just like, he didn't have to, but he knew that the quality of the work would improve if he did that for her. You don't do that if you dislike your colleague.
N. Rodgers: I'm sure the Scorpions didn't do that. Which is also fascinating that they were all. Listeners can't see me, but my hands have my tails up like Scorpions where they're. When they're fighting, they first the dance around each other with their tails up. I imagine that a lot of that went on in the age of Scorpions because they didn't like each other and they didn't want to have collegial relationships, which is also interesting.
J. Aughenbaugh: Even though politically, pretty much all the Scorpions were liberals. But when they got on the court, good Lord, you would not know that they were from the same political tribe. How does that happen? You don't figure that out.
N. Rodgers: By reading the opinions.
J. Aughenbaugh: I'm sorry, you just don't.
N. Rodgers: You figure it out by the internal correspondence. You figure it out by sort of those memos that they send to each other. We're like, and the reason that you wrote this is because you're an idiot blah, blah, blah. Surely don't say that.
J. Aughenbaugh: One of the things that we found out in reading, going through Blackman's 1,500 boxes of paper was that when Scalia first got on the court, he did something that most justices did not do up until that time, which is when you first get on the court, you're like a freshman in high school. You don't want to be seen or heard you don't want to get bullied and you don't want to look embarrassed, blah, blah, blah. He gets on the court and he starts firing away questions immediately. There is a handwritten note that Blackman wrote to one of his colleagues that says something to the effect, does he recognize that there are eight others on the bench.
N. Rodgers: Which is you wouldn't know if you didn't see those papers. That's important. That's why we're in the game of public access. That's why Aughie and I are constantly pushing this idea of go read, go find out. There's public documents. I like the Canadian. I do want a shorter window.
J. Aughenbaugh: I want to shorter window.
N. Rodgers: I like the Canadian know you're part of this process. You need to have a coherent plan for releasing your papers. That may come after a judgment is made about the Presidential Records Act. If that makes it to the Supremes and they say it's constitutional, then there may be some movement towards, well, if that's true, Congress should put something in about the justices and what they have to do, which would only be fair and square.
J. Aughenbaugh: Thank you.
N. Rodgers: Thank you, Aughie. The backgrounders are always interesting to me about the courts because they're people, and they're such interesting people sometimes, so thank you.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.