Supreme Court’s Souter has locked history away

For a historian, newly retired Supreme Court Justice David Souter seems exasperatingly shortsighted.

He didn’t want cameras filming the court’s public business during his 19 years on the nation’s highest tribunal.

Now, he doesn’t want scholars prying into his papers for 50 years.

Who’ll be around by then who knew him?

Souter, nominated to the court by President George H.W. Bush in 1990, shunned publicity throughout his tenure, so the public at large didn’t witness his droll wit or quiet charm.

If you squint, you might see plausible arguments for not inviting TV voyeurs into the grand courtroom where the justices hear arguments in some of the country’s most important legal disputes. Of course, he was only one of nine votes on that.

But Souter alone controls access to the collection he’s given to the New Hampshire Historical Society.

If he values civic literacy in government as he says he does, why hide such a rich trove of original source material for so long?

Souter helped affirm the core holding of Roe v. Wade, a constitutional right to abortion. He dissented when the court stopped the Florida vote recount that resulted in George W. Bush winning the 2000 presidential election.

He wrote majority opinions on copyright law, telecommunications, campaign finance, the First Amendment’s religion clauses, search and seizure, and other issues. But those are public record, easy to find. It’s the letters, memos and other working papers that give life to the institution.

Tony Mauro, who has covered the Supreme Court for decades, wrote on Law.com that Souter is "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."

Chief Justice William Rehnquist, who died in 2005, stipulated that his files about specific cases shouldn’t be made public while justices involved in them were alive. But that allowed the Hoover Institution Archives at Stanford University to start making other papers available in November.

At the Library of Congress, the papers of Justice Byron White are embargoed until 10 years after his 2004 death; Justice William Brennan’s personal letters are on hold until 20 years after his 1997 death.

Justice Thurgood Marshall made his papers available the quickest: within months of his 1993 death, less than two years after he retired.

Didn’t that cause a kerfluffle.

But it provided invaluable insight into a usually impenetrable branch of government.

During speeches this year, Souter has called for better civic education so people can better understand "how the judiciary fits within the constitutional scheme," and he’s talked about the importance of learning history as "an antidote to cynicism about the past."

He could contribute best by unlocking his collection sooner.

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