Brennan Papers are (partly) open

[Mary L. Dudziak]

Many believe that the Brennan Papers at the Library of Congress are
largely closed, and access can be gained only with permission.  But
instead important parts of the papers are open -- no permission needed
-- through the 1974 term.  I repeated the error in a message to
lawcourts & conlawprof earlier this week, so I wanted to send an update
and clarification, for those who are interested.
 
The restrictions on the Brennan papers are complicated, and the text of
the restriction is not included in the finding aid or provided to
researchers.  This has led to confusion.  When I inquired this week,
here's what I was told:  
 
The following records are unrestricted:  
Part I, Boxes 1-364
Part II, Boxes 1, 3, 4, 6
You can find out what's in these boxes through the finding aid, here:  
http://lcweb2.loc.gov/cgi-bin/faidfrquery/F?faidfr:2:./temp/~faid_1HYr::
(if you have trouble w/ the link, go to the Library of Congress website
and navigate to the manuscripts page, and from there go to finding aids.
Then search for Brennan's.)
 
Basically, the unrestricted boxes in Part I are case files through the
Oct. 1974 term.  The boxes in Part II include some of the
end-of-the-term memos/case histories.  You can read some of these very
interesting summaries at Slate.com, at this link:
http://www.slate.com/id/2156940/slideshow/2157023/entry/2157022/
Many more are in these open files.  
 
The boxes that are RESTRICTED include later casefiles and Justice
Brennan's correspondence.  You can ask permission to see Part I, boxes
365-716, and Part II, boxes 2 and 5.  To ask permission, you must
contact the Manuscripts staff at the Library of Congress.
http://www.loc.gov/rr/mss/  The rest of the papers are restricted, and
the Library of Congress is not supposed to accept any requests from
researchers to see them.  I was told that the restrictions change over
time, with more materials opening up.  So you always need to check with
the Library of Congress.
 
The good news is that many files are easily accessible with no
restrictions.  The not-so-exciting-news is that I found that Brennan's
case files were similar to Justice Marshall's.  There were printed
drafts of opinions, with markings, joining memos and other misc. memos,
most of which were circulated to the Conference.  There were no notes
from oral arguments, no conference notes, no memos from clerks, no
private correspondence with colleagues.  (I looked only at the files for
two cases -- Milliken v. Bradley & Rodriguez.  It's possible, of course,
that the records are richer for other cases -- though the files for
those cases are lengthy.)  The more interesting details come from the
end-of-the-term memos.  But those do not cover all significant cases
from a particular term.  And while they refer to particular documents,
the underlying sources are not in the file.  To read them is to read an
account of a history, rather than to encounter it through the primary
sources themselves.  So they are most valuable, but have their limits.
 
I hope this is helpful.
 
Best wishes,
Mary Dudziak
 
Mary L. Dudziak
Judge Edward J. and Ruey L. Guirado Professor of Law, History and
Political Science
University of Southern California Law School
On leave in Sharon, Massachusetts (2006-07)
Home page:  mdudziak.com
 
 
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