Document Type


Publication Date

January 2012



First Page



This essay examines the benefits and drawbacks of writing about the U.S. Supreme Court using the papers' of the Justices and how the work of Professor James F Simon highlights the benefits. The benefits are that the Justices' papers provide invaluable understanding of the Court's decisionmaking process, the influences that are significant, and how much substance actually matters. The papers shed light on why important legal doctrines developed in certain ways and what arguments held sway, identify rules that may be on thin ice in terms of underlying support, and show the nature of the working relationships among the Justices, which are critical to the Court's ability to function, and what happens if and when those relationships break down. The drawbacks that may derive from using the Justices' papers include treating the notes ofJustices at their private conferences as verbatim summaries of discussions, using evidence of internal uncertainty and division on the Court in close cases to attack the validity of Court rulings, and overinterpreting critical or negative comments in documents to reflect rifts or feuds where none may have actually existed or where the context may be different than what a Justice intended. This essay will briefly plot the historical development of reliance on the papers of Justices for Supreme Court research and will then reflect on some of the benefits and drawbacks, drawing on examples in the work of Professor Simon and others who have written about the Court.

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