A-HED

‘Harry. Stay Awake.’ Supreme Court Justices Caught Passing Notes.

Handwritten notes that justices gave to each other are becoming public; ‘Griffey flied out to center, w/bases loaded. NO SCORE’

Members of the U.S. Supreme Court in November, 1986. Harry Blackmun is seated at right, first row. BOB DAUGHERTY/ASSOCIATED PRESS

By Jess Bravin

Oct. 2, 2019 11:15 am ET

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32 RESPONSES

WASHINGTON—Seated behind the bench for oral argument, the justices of the Supreme Court train their robust intellects on America’s most vexing legal questions.

Unless they’re passing notes like bored teenagers.

“Harry. Stay awake,” Justice Antonin Scalia wrote to Justice Harry Blackmun during the final argument of the 1990-91 term, on whether the Federal Insecticide, Fungicide and Rodenticide Act allowed town supervisors to restrict aerial spraying over a rural Wisconsin tree farm. (It did.)

During a December 1974 argument, Justice William O. Douglas proved himself a judge of fashion as well as law. “We should not give this guy many points in his argument,” he scribbled about an unidentified lawyer at the lectern. “But as far as his jacket is concerned, he comes out way above the average.”

Such writings form a small, if illuminating, subset of some 15,000 handwritten documents that Timothy Johnson, a political-science professor at the University of Minnesota, has copied over two decades from archives housing the papers of former justices.

Notes between Supreme Court justices during game 5 of the 1973 National League Championship Series, played during arguments over the Central Intelligence Agency's budgeting procedure. PHOTOS: TIMOTHY JOHNSON(2)

The passed notes provide “an interesting insight into what they were thinking about as the attorneys were arguing,” Mr. Johnson says. “They talked about sports, they talked about selling their houses.”

With proper arrangements, some scholars have been able to study the original documents. But for the broader public, the records remained buried in dusty stacks and are often impenetrable without detailed legal and historical knowledge—and an ability to decipher the fading scrawls of long-deceased jurists.

Mr. Johnson aims to change that through an archive he is building, called ScotusNotes. Assisted by some 1,500 volunteer transcribers, he is digitizing the documents to create a free database. Depending on a justice’s penmanship, as many as 10 transcribers can be assigned to a single document, improving the odds of accuracy.

Timothy Johnson, a professor at the University of Minnesota, is spearheading a project that is digitizing notes of Supreme Court justices. PHOTO: ACKERMAN + GRUBER FOR THE WALL STREET JOURNAL

The collection’s most important records are notes from the “conference,” the private meeting where justices discuss and decide cases. But the scraps of paper passed on the bench are in many ways more revealing.

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“There was a young girl from Cape Cod/Who thought little babies came from God,” begins a limerick Justice William Rehnquist wrote in March 1975, during arguments over New York regulations cutting welfare payments to mothers who kept lodgers in their homes. Challengers contended the penalty was invalid under precedent rejecting a similar Alabama policy intended to “discourage immorality” among unmarried adults.

A 1975 note written by Justice William Rehnquist recites a limerick. PHOTO: TIMOTHY JOHNSON

Justice Rehnquist’s rhyme, recalling one popular during his World War II service, presaged his lone dissent when the court later ruled against the state. It concludes:

But it wasn’t the Almighty

Who lifted her nighty

It was Roger the Lodger, by God!

Nearly all of Mr. Johnson’s passed notes come from the papers of Justice Blackmun, who kept extensive records from his 1970-1994 tenure. Several of today’s justices continue to pass notes at oral argument. Justice Ruth Bader Ginsburg, speaking at the National Book Festival in August, said Justice Scalia used to whisper jokes to her when they were seatmates.

“When we didn’t sit next to each other, he would sometimes send me notes,” she said. “I can’t repeat to this audience what some of them were,” she said with a smile.

Some current justices were startled to learn that their predecessors’ casual writings were becoming publicly available, prompting new retention policies for passed notes.

“I’m burning mine,” said Justice Stephen Breyer.

Some justices might have wished they’d followed his advice, given comments that would hardly be acceptable today.

“Note ‘blond’ in second row, center,” Chief Justice Warren E. Burger wrote Justice Blackmun in November 1971. “She is here almost daily—at least since you came!”

The Blackmun-Burger friendship eroded over the years, however, and Justice Blackmun apparently found some of his fellow Minnesotan’s affectations irritating. A 1988 note, referring to the then-retired Mr. Burger by initials, observed that the 15th chief justice had adorned his car with vanity plates: “WEB’s license #—CJ 15—been seen on the car.”

“Bill, do they have any prizes here for the term’s worst brief?” Justice Blackmun wrote Justice William Brennan during a February 1972 case. The brief, by a Kentucky prosecutor seeking to force a reporter to reveal his sources for a story on the Frankfort drug scene, was three pages long and cited no federal precedents.

“He’ll presumptively win the prize,” Justice Brennan responded on the same piece of notepaper. Their agreement didn’t extend to the merits; over a Brennan dissent, Justice Blackmun joined the 5-4 ruling against the reporter.

Justice Harry A. Blackmun, left, wrote a note to Justice William J. Brennan, Jr. during a 1972 case, saying "Bill, do they have any prizes here for the term’s worst brief?” PHOTOS: LIBRARY OF CONGRESS PRINTS AND PHOTOGRAPHS DIVISION

On occasion, things got serious. Justice Blackmun’s most controversial opinion, Roe v. Wade, came down in January 1973. Two months later, Justice Douglas’s wife, Cathy, was in Portland, Ore., attending her aunt’s wedding.

“Hers is a Catholic family, & once a drink is served, they denounce her for the abortion decision,” wrote Justice Douglas, himself part of the Roe majority. “She says she’s still defending you.”

More typically, justices commiserated over the burdens of office. In a March 1992 note, Justice Sandra Day O’Connor complained about having to swear in a new secretary of commerce. “They talked too long,” she wrote.

Chairs of U.S. Supreme Court justices in Washington, D.C. Handwritten notes from the justices are being made public. PHOTO: ANDREW HARRER/BLOOMBERG NEWS

A December 1982 note from Justice John Paul Stevens, apparently answering a Rehnquist trivia question, extolled 1930s Cubs right fielder Kiki Cuyler: “Stole the most bases in Nat’l League (I think).”

Game 5 of the 1973 National League Championship Series played during arguments over the Central Intelligence Agency’s secretive budgeting procedure. Court aides delivered updates to the justices, who shared them down the bench.

“[Ken] Griffey flied out to center, w/bases loaded. NO SCORE,” reads one note, wrapping up the first inning. Suddenly, a news event interrupted: “V.P. Agnew just resigned!!” another note reads. The next line returned to the important stuff: “Mets 2, Reds 0.”

The Mets won the game 7-2. The CIA won its case, 5-4.

Write to Jess Bravin at jess.bravin@wsj.com

(http://www.autoadmit.com/thread.php?thread_id=4355880&forum_id=2#38922094)