The Supreme Court, citing the ongoing COVID-19 pandemic, is continuing to delay the release of internal documents concerning the 2000 election battle between Al Gore and George W. Bush, as well as other important cases that took place in the late 1990s and early 2000s.
The documents were to be opened in 2020 under plans that had been reached by the late Justice John Paul Stevens, who died in 2019, reports CNN. He served from 1975 to 2010, when he retired and had planned for most of his case files to be made freely available at the Library of Congress by October 2020.
Stevens’ files had covered cases up until October 1, 2005, including the files for the case on the Bush v. Gore decision. The documents also include materials concerning several landmark cases, including two groundbreaking decisions on gay rights, a University of Michigan affirmative action dispute, and several cases concerning post-9/11 Guantanamo detainees.
Such files contain draft opinions and memos between judges, notes CNN. They can show strategies of justices, why some appeals are accepted and others are turned down, and even why justices have switched their votes.
Stevens was the senior justice in the majority, for example, in 2003, when the court struck down a ban in Texas on private sexual conduct between gay adults. In another case in 1996, the court blocked a measure from Colorado preventing cities from passing anti-discrimination laws protecting gay people.
According to Library of Congress spokesman Brett Zongker, the facility has been in contact with the Supreme Court over the Stevens transfer but hasn’t gotten a date yet. He told CNN in a statement that it’s difficult to say how long it will take to process and catalog the files, but added that documents already received covering the first nine years of Stevens’ tenure came in more than 10 years ago and took less than four months to be processed.
The remaining papers will contain more materials, “relating to [Stevens’] entire life as well as Supreme Court case files, dockets, and other material” and could take longer to be made ready for public view.
The release of such papers on the past has angered still-sitting justices, which happened in 1993 with the release of Justice Thurgood Marshall’s papers a few months after he died.
Then-Chief Justice William Rehnquist wrote a letter of rebuke to James Billington, then the Librarian of Congress, on behalf of the court’s majority. He was not able to get all eight associate justices to sign the letter but said he was writing for a “majority” of them.
Meanwhile, the Supreme Court’s public information office said that the Stevens papers were still being organized, but the pandemic slowed that work. Library officials said they have no date for when the materials would be turned over. Once in hand, the library would sort and catalog the materials for public access.
Library officials said Stevens finalized his agreement on the papers on Jan. 3, 2005, and signed a supplemental agreement on April 20, 2010, on his 90th birthday.
Justice Stephen Breyer, the oldest sitting justice, told CNN that he hasn’t yet decided if he’ll turn his papers over to a library. He added that justices have an “informal understanding” that some documents, like memos and draft opinions, will stay out of public view until after the deaths of other justices who served on cases.
The Library of Congress is also still waiting for the transfer of late Justice Ruth Bader Ginsburg’s files. Her files are all scheduled to be housed at the Library, but the case files will be closed to researchers while justices participating in the decisions remain alive.
The Stevens files will contain documents with remaining Justices Breyer and Clarence Thomas, as well as retired, but still-living Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy. The materials also have documents involving the work of deceased justices Ginsburg, Antonin Scalia, and Rehnquist.