Earlier this week, I visited the University of New Hampshire. The law school set up a center named after Warren Rudman. Perhaps Rudman’s most important contribution to our republic was that of Justice David Sauter.
After more than a decade of retirement, Justice Sauter is making headlines again. Or more precisely, one of his law clerks is in the news. No, not the clerks who are #FriedBritney. Rather, a clerk in Sauter apparently wrote an influential memo Rowe In June 1991. And Joshua Pragar, who wrote a new book about it Rowe, Parts of the Super-Secret Memo have been published. The memo is of course confidential, as Justice Sauter will not release his papers until fifty years after his death. At that time, most of us will die.
Here is an excerpt from Prager’s article:
Sauter knew that abortion could go back to court during his reign. His first term in court was coming to an end when, in June 1991, former Harry Blackmoon clerk Edward Lazarus later wrote in his book “Closed Chambers” that he had asked four of his departed clerks to write down their thoughts on the matter. Only one argued in favor of Roy, that Clark Souter handed over cry2 crystal pages that centered on the decision of vision – a theory that was like Sutter, legal precedents should generally not be dismissed. Regarding abortion, the clerk wrote, that doctrine was particularly compelling. “Rowe,” he wrote, “uniquely involves the decisive concern of strong vision.”
The memo added that all legal arguments proposed to oust Rock would threaten Griswold v. Connecticut, a landmark 1965 decision that established a constitutional basis for the right to privacy. And the joke writes that it was relevant to the goal of the exemplary decision, that a generation of women who were accustomed to Roy, “formed their lives around that right.”
The memo further argued that while Rowe, while not out of criticism, was the basis of constitutional law, “it is stronger than it currently seems fashionable to recognize.” Nevertheless, the clerk allowed that if Sauter found it prudent, concerns about sharp decisions about “relatively small adjustments to the row” would be less serious, e.g., replacing the quarterly structure with “unreasonable burden” criteria Previously approved; Any law that violates the right of women to have an unreasonable abortion is illegal.
Read all of this Souter. And he concluded that the court should be reassured at the conference two days after the oral argument in Casey, that most of his fellow judges had reached the opposite conclusion.
Tracks stare decisis anaylsis from this memo Casey, Which was probably written about Justice Sauter. Now, as much as I care about Chief Justice Burger’s opinion in the Second Amendment, or Justice Powell’s opinion about its effectiveness or diversity, I care about Justice Soutter’s opinion about Star Disease. Which is to say, not at all.
Still, Prague’s column teases a puzzle. Which law clerk wrote this memo? According to the ever-reliable Wikipedia, there were four clerks in Souter in the October 1990 term, ending in June 1991.
First, Paul Salamanca had previously worked as a clerk for Sauter in the First Circuit and joined him in the Supreme Court. Paul is a law professor at the University of Kentucky. He served in the Trump administration.
Second, John Sullivan later served on Bush O1 OLC and as Deputy General Counsel for Bush’s re-election campaign. Most recently, Sullivan Bush served at 43 DOD and was President Trump’s ambassador to Russia.
Third, Mir Federer served as Deputy Chief of the Appellate Unit at SDNY during the Bush Administration. He is now a partner in Jones Day.
Fourth, Peter Spiro is a law professor at the temple. Co-director of the Spiro Institute for International Law and Public Policy. He briefly served as Director of Democracy in the National Security Council in 1994. Prior to becoming his clerk, he served as an attorney adviser to the State Department from 1987-1989.
These memos, which have not been published, will not be published in the papers of Justice Blackmoon or Marshall. Perhaps Sauter did not publish the memo. Probably not, as one of his law clerks published the memo. Without any inside information. Without knowing anything else, my guess would be Spiro.
Anyway, Joan Biscuit finally got justice on the record. Type, type.
Outer 2-year-old Souter retired from court in 2009 and returned to his hometown of New Hampshire.
When contacted by CNN about Planned Parenthood vs. Casey, he said he “apologizes from the voice of Cassie’s recollection.”
Added Souter: “I still think that his silence is the best way to judge a judge’s past decisions.”
Agree. I hope Justice Stevens followed Sauter’s advice.