Souter Speaks on Casey. Sort of.

We learn of a memo written by one of Souter's OT 1990 Clerks that urged him to uphold Roe.


Earlier this week, I visited the University of New Hampshire. The law school hosts a center named after Warren Rudman. Perhaps Rudman's most important contribution to our Republic was Justice David Souter.

More than a decade after his retirement, Justice Souter is once again in the news. Or more precisely, one of his law clerks is in the news. No, not the clerk who #FreedBritney. Rather, one of Souter's clerks apparently wrote an influential memo about Roe in June 1991. And Joshua Prager, who wrote a new book about Roe, published excerpts of the super-secret memo. The memo is secret, of course, because Justice Souter will not release his papers until fifty years after he dies. At that point, most of us will also be dead.

Here is an excerpt from Prager's article:

Souter knew that abortion was likely to return to the Court during his tenure. His first term on the Court was ending when, in June 1991, as former Harry Blackmun clerk Edward Lazarus later wrote in his book "Closed Chambers," he asked his four outgoing clerks to write down their thoughts on the matter. Just one argued in favor of Roe, that clerk handing Souter 32 crystalline pages that centered on stare decisis -- the doctrine that held, as Souter did, that legal precedents should ordinarily not be overruled. On the matter of abortion, wrote the clerk, that doctrine was particularly compelling. "Roe," he wrote, "implicates uniquely powerful stare decisis concerns."

The memo added that all of the proposed legal rationales for overturning Roe would threaten Griswold v. Connecticut, the landmark 1965 decision recognizing a right to contraception that established the Constitutional basis for the right to privacy. And it was relevant to the goals of stare decisis, wrote the clerk, that a generation of women had acclimated to Roe, had "shaped their lives around that right."

The memo further argued that Roe, while not beyond criticism, had a grounding in constitutional law "stronger than it currently seems fashionable to recognize." Still, the clerk allowed that if Souter felt it prudent, concerns over stare decisis would be less severe with "a relatively minor adjustment of Roe," namely, replacing the trimester framework with the "undue burden" standard of regulation that Justice O'Connor had endorsed a decade before; any law that unduly burdened a woman's right to obtain an abortion would be invalid.

All of this Souter read. And he had concluded that the Court ought to reaffirm Roe when, in conference two days after oral arguments in Casey, a majority of his fellow justices concluded the opposite.


This memo closely tracks the stare decisis anaylsis from Casey, which was likely written about Justice Souter. Now, I care about Justice Souter's views on stare decisis as much as I care about Chief Justice Burger's views on the Second Amendment, or Justice Powell's views on viability or diversity. Which is to say, not at all.

Still, Prager's column teases a riddle. Which law clerk wrote this memo? According to the ever-reliable Wikipedia, Souter had four clerks during the October 1990 Term who would have wrapped up in June of 1991.

First, Paul Salamanca had previously clerked for Souter on the First Circuit, and joined him at the Supreme Court. Paul is a law professor at the University of Kentucky. He served in the Trump Administration.

Second, John Sullivan later worked in the Bush 41 OLC, and served as Deputy General Counsel of Bush 41's re-election campaign. More recently, Sullivan served in the Bush 43 DOD and was President Trump's ambassador to Russia.

Third, Meir Feder served as Deputy Chief of Appeals Unit in SDNY during the Bush 43 Administration. He is now a partner at Jones Day.

Fourth, Peter Spiro is a law professor at Temple. Spiro is the Co-Director of the Institute for International Law and Public Policy. He briefly served as the Director for Democracy of the National Security Council in 1994. Prior to his clerkship, he worked as an Attorney Adviser in the State Department from 1987-1989.

These memos, which were not circulated, would not have appeared in the papers of Justices Blackmun or Marshall. Presumably Souter did not release the memo. More likely that not, one of his law clerks released the memo. Without any inside information. Without knowing any more, my guess would be Spiro.

In any event, Joan Biskupic finally got a Justice on record. Sort of.

Souter, 82, retired from the court in 2009 and returned to his native New Hampshire.

When contacted by CNN about Planned Parenthood v. Casey, he said he wanted "to be excused from voicing recollections of Casey."

Added Souter: "I still think that on a judge's past decisions his silence is the best course."

Agreed. I wish Justice Stevens would have followed Souter's advice.

NEXT: PennEast Abandons Plans to Use Eminent Domain to Seize State-Owned Land in Case that Resulted in a Major Supreme Court Decision

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  1. I don't know anything about the others, but I understand that Peter Spiro argues that an international treaty ought always to trump a federal statute, even one passed after ratification of the treaty. The position taken in the clerk's memo seems right in line with this view, as in both cases, a position taken by the bien pensants (the wise men on the 1973 Court in one instance, the foreign policy establishment in the other) from ever being undone by the people.

  2. ...people will think that the Court's decision [has] its source not in an effort to be faithful to what the Constitution commands (or fails to command), but in an organized campaign by [...] to obtain a particular result regarding a particular issue.

    Which is precisely what happened in Roe.

    1. Yeah, it's kinda hard to imagine that was written in innocence, when even pro choice judges have accepted that Roe was legally nonsense.

  3. Hopefully, that was the worst part of the memo excerpted. How can a clerk, with a straight face, tell a SCOTUS justice that a case has to be upheld because it would undermine the court's standing with the public? How is that any different than saying that a case should be upheld because otherwise the Republicans would be happy?

  4. Prof. Blackman cares not at all about Justice Souter's views on stare decisis but devotes a column on which clerk may have penned a memo influencing the Justice's views? Fascinating.

  5. And it was relevant to the goals of stare decisis, wrote the clerk, that a generation of women had acclimated to Roe, had "shaped their lives around that right."

    What could possibly be going on in this fellow's head ? A generation of women had acclimated to Roe and had "shaped their lives around that right ?"

    Did he not know that pregnancies only last nine months ? If abortion is legal and then becomes illegal, you are only going to be caught short by the court doing a 180, if you happen to have got pregnant within nine months of the 180, and have not yet availed yourself of your right to abortion, when SCOTUS hands down its backflip (assuming it chooses to apply the backflip to existing pregnancies.) And it's not as if SCOTUS ambushes the public with sudden shock decisions that don't appear in their schedule. In practice any pregnant woman who has "shaped her life around her right to abortion" will have months to get it done before the court turns her into a Handmaid.

    In reality, abortion rights are among the least likely things to need stare decisis protection - because pregnancies are short term affairs. They get mooted within nine months - one way or another.

    I concede that a small number of women, and men, have stronger stare decisis claims - those who have put time and effort into building their abortion businesses. But this is hardly "a generation of women."

  6. Democrats will do ANYTHING to protect their baby-killing -- including tearing down the court and the country through civil war.

    Screw 'em -- this time let them go!

  7. It probably wasn't the Catholics...want to guess who?

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