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The National Law Journal
The New Hampshire Historical Society has announced that retired Supreme Court Justice David Souter is donating his personal and professional papers to the society. But don't book travel to New Hampshire quite yet to take a peek; Souter has placed an extraordinarily long restriction on public access to his papers, barring anyone -- researchers, historians, friends, journalists -- from viewing the material for 50 years. That's a lengthier seal than any justice has placed on papers in recent memory.
The unusually severe bar on access is surprising in one sense, but very Souter-esque in another. Souter is an avid historian -- in fact joining the board of trustees of the New Hampshire Historical Society as part of the announcement of his decision to donate his papers there. He knows well the "call of history," the obligation of historical figures and public officials to help flesh out the how and why of important events.
But Souter is also an intensely private person, especially protective of the Supreme Court on which he served for 19 years. He was a lifelong diarist and may have decided that his files were too sensitive to be made public while any of his colleagues or many of his law clerks are still alive. Other justices have solved similar issues by making some segments of their papers available earlier, others later.
"I would have been surprised by anything under 25 years," said University of Cambridge lecturer David Garrow, a Court historian who has written extensively about Souter. "I guess I would have hoped for 25. But, given his diary keeping (though we don't know for sure whether or to what extent he continued that at the Supreme Court) I could imagine him wanting to believe, for instance, that pretty much all his clerks would be gone by the time that everything came open."
Fomer New York Times reporter Linda Greenhouse, who mined the papers of the late Justice Harry Blackmun for her 2005 book "Becoming Justice Blackmun," said of Souter's restriction, "I'm disappointed. There must have been a targeted way that Justice Souter could have removed memos or other information that he didn't want to make public, while at the same time not locking away for the next two generations the records of a fascinating period in Supreme Court history. David Souter has a great deal of wisdom to offer the country, and I hope that he will continue to offer it in person, especially since he won't be doing it through his papers."
Historical society executive director Bill Veillette said he was pleased to have acquired the papers -- the Library of Congress and Souter's alma mater Harvard College were also interested -- and did not push back when Souter specified the 50-year restriction. At the society, Veillette said, it's not unusual to acquire the papers of a famous New Hampshire personage from heirs 100 or more years after the person's death. So to him, 50 years after Souter's retirement is "almost fresh from our vantage point."
Veillette added, "We've had a very long relationship with Justice Souter and, as with any donor, it's their stuff. If they have wishes or conditions they want to place on it, we're not going to talk them out of it." Souter has been a member of the society since 1971.
Souter's decision on placement of his papers has been years in the making, Veillette said. "Conceptually, we had an agreement in 2005. The only question was when." He added, "He really did his homework to come to this very thoughtful conclusion."
Veillette said he has not questioned Souter closely on the contents of the papers, but has the sense they are "very well organized." Souter has already culled out "redundant documents," such as published Court opinions that are available elsewhere. The papers total about 350 cubic feet, Veillette estimates.
Will the society be able to catalog the papers now, or not until the restriction is nearly over? Veillette says he has discussed this with Souter, knowing that if a cataloguer has any questions, it would be useful to be able to ask them while the source of the material is alive. Veillette says Souter is "considering" allowing an unnamed "mutual person we have access to" to do the cataloguing, but otherwise society personnel are covered by the 50-year restriction like anyone else.
Where are Souter's papers? Veillette says they are in transition but will ultimately be housed in the society's library in Concord. "It's like a vault, a very secure place."
Thorough the Court's public information office, Souter declined comment.
This article first appeared on The BLT: The Blog of Legal Times.