Using Secret Materials for Interpretation
Greetings from the AALS! I wanted to post about something that I’m thinking about in relation to a paper idea.
Many Supreme Court opinions are ambiguous or susceptible to different readings. The Justices discuss the issues in confidence until the decision comes down, and then decades later the papers from those deliberations become available. What a wonderful resource, you would think, in understanding what a particular opinion is supposed to mean.
Except courts don’t use those materials. In other words, it is seen as inappropriate to cite the “work product” of the Court to ascertain the meaning of a decision. This, of course, is unlike the interpretation of statutes, which often look to legislative history. Ah, you might say, legislation is different. Those discussions are public, and that makes them fair game in a way that confidential deliberations are not.
Except that when courts interpret the Constitution, they do use the secret deliberations of the Framers in construing that text. Why is that appropriate when citing the Court’s work product is not? (I’m talking about lawyers and courts. Historians can cite anything they want.) What is the principled distinction between these two?
Granted, the work product of the Court may often be unhelpful in shedding light on a decision. But right now you can’t use them even if they were helpful. Do decisions always speak for themselves?
Two last thoughts. One is that the first case that extensively cited the deliberations of the convention was Dred Scott, which suggests that perhaps that practice should be reexamined. Second, there is one case where the Justices do cite extrinsic materials to construe a case–Brown. The Court has cited the briefs in Brown to determine what Brown, which tells you something about Brown’s place in the constitutional canon.