The Supreme Court has no policies for preserving the papers of its Justices. Illustration by John Cuneo

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.

Felix Frankfurter is one of the most cantankerous and controversial figures in the history of American law. By some accounts, he broke the Court, and it has never been right since. The pilfering of his papers was a disaster, but it’s nothing compared with the loss to the historical record that happens every day, a block away, in the chambers of the U.S. Supreme Court. 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.

This fall, the Supreme Court issued a number of rulings that came as something of a surprise—refusing to hear a series of cases involving same-sex marriage, for instance—but there’s no reason to believe that historians will ever really know how the Court arrived at these decisions. Very few of the documents that could genuinely illuminate them will survive. The Federal Records Act, passed in 1950, specifically excludes the Supreme Court. In 1978, in the wake of Watergate, Congress passed the Presidential Records Act, which made the papers of American Presidents the property of the federal government; destroying them is a federal crime. There is no judicial equivalent. 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. “The very idea of cooking up opinions in conclave begets suspicions,” Thomas Jefferson complained. This criticism has never entirely quieted, but every time things get noisy the Court simply brazens it out. To historians and journalists who are keen to have the Court’s papers saved and unsealed, advocates of judicial secrecy insist that the ordinary claims of history and of public interest do not apply to the papers of U.S. Supreme Court Justices; the only claim on the Justices is justice itself.

Sitting Justices often view their colleagues’ decisions to make their papers public without delay as a betrayal of the living. Louis Brandeis began handing his papers over to the University of Louisville, in Kentucky, in 1936, three years before he stepped down from the Court. Frankfurter and Brandeis had been close correspondents. After Brandeis’s death, in 1941, Frankfurter went to Louisville, stormed into the library, asked for the file labelled “Frankfurter,” and took nearly everything out of it. “These are my papers, and I’m taking them back,” he told the librarian as he walked out the door, sheaf in hand.

Even judges who start out thinking they’d like to make their papers available tend to change their minds. After William Rehnquist graduated from Stanford Law School, he clerked for Frankfurter’s colleague Robert Jackson. Early in his career, Rehnquist told the legal historian Stanley Katz that he thought there ought to be a requirement that all judicial papers be given to the Library of Congress. In 1971, when Rehnquist was nominated to the Court, his nomination was nearly defeated by the discovery, among Jackson’s papers, of a memo that Rehnquist had written in 1952, on the subject of segregation. In 1986, the memo haunted Rehnquist’s confirmation as Chief Justice, too. Not long afterward, the legal historian Melvin Urofsky, who was researching a book about Johnson v. Santa Clara, a 1987 affirmative-action case, happened to be chatting with William Brennan at a party. “Could I look at your folder on this case?” Urofsky asked Brennan, half joking. “Sure,” Brennan said. Urofsky went to Brennan’s office, and Brennan’s secretary gave him a thick folder. (Brennan had written the opinion for a 6–3 majority, upholding a company’s decision to hire a woman over a man; Rehnquist joined a dissent written by Antonin Scalia.) After Urofsky’s book came out, he went back and asked Brennan for a folder relating to another case. “I’m sorry but I can’t,” Brennan said. The Chief Justice had read Urofsky’s footnotes, Brennan said. “Rehnquist had a fit.”

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’s been tabled. Rehnquist died in 2005. In 2008, his papers—nearly nine hundred boxes—went to the Hoover Institution. More than five hundred will remain closed until the last Justice who served with Rehnquist dies. History is patient. But perhaps the time has come to ask, How long is too long to wait?

F.D.R. nominated Frankfurter to the “scholar’s seat” on the Court in 1939. Rarely has an appointment been met with such high expectations. People thought he’d be the next Oliver Wendell Holmes. “He has more brains than the whole Brain Trust combined,” a friend of his said. Rarely has a Justice proved so disappointing.

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.