Last Friday, many of my peers left for Spring break on trips that involved skiing in the mountains, tanning by the ocean, or going back home. When my friends asked me what I was doing for the break, they were a little surprised when I said I would be reading in the Library of Congress for my Supreme Court Seminar class. And I guess I understand their surprise, but they didn’t know that I wouldn’t just be reading. For five days, I would be researching. I would have the unique opportunity to touch the actual papers of past Supreme Court Justices whose decisions continue to shape America and the way we live today.
Why is it that Supreme Court Justices all hear the same oral arguments, all read the same precedents, and all have the same facts but come to such different conclusions? By researching the Justices’ own papers, one gets a back stage pass into the minds of the Justices and has a chance to investigate how and why a decisions were made.
For my particular research, I am measuring the extent of Chief Justice Rehnquist’s influence and leadership on the Takings Clause. The Takings Clause just says the government can’t take your land (private property) if it’s not for a public use, and if the government takes your land they have to give you just compensation for it. The Takings Clause wasn’t really a big deal on the Court until 1922 when the Supreme Court decided that a regulation could amount to a taking. Basically, the government did not physically “take” the property but they regulated the property in way that was equivalent to a physical taking. After 50 years of silence on the issue, Penn Central v. New York revitalized the issue, and the Court began a period where they determined what a taking, just compensation, and public use exactly was. What is especially interesting is that if I were to ask the Court what a taking was in 1978 and again in 1994, the Court would say two very different things.
In researching the development of this issue, the papers are extremely helpful in pinpointing what happened to spark those changes from 1978 to 1994. For instance, today I came across Justice Blackmun and his clerks concerned about the length of a Court opinion because Justice White “was on the fence” about this case, and they did not want to risk losing a majority in a case that largely altered the course of private property. Additionally, I came across a memo in Blackmun’s files where a clerk reported to Blackmun that Scalia was infuriated over the circulated dissent in Lucas and that Scalia would now be adding new language to his majority opinion.
Ultimately, the opportunity to examine the papers of the Justices is unlike any other. My peers and I get a firsthand look into the judicial making process that few rarely get. I should probably mention that our class went on a private tour of the Supreme Court and met the Clerk today too (I also should briefly address that this trip also gives students glory that they could never dream of in the classroom: beating… destroying… Professor Kobylka in board games).