July 25, 1990: Those fools! If I keep my mouth shut, all will be well. I can't wait to get on and really show the country who's boss. It'll be great fun once o' George realizes that I've stabbed him in the back.
October 9, 1990: VICTORY! MOWHAHAHAHAHAHA!!! Now I can rule! RULE!!!!!!
Insanity. Any of his papers as a Justice were bought and paid for by the people of this country, and should be INSTANTLY in the public domain. We have that right, we PAID for them.
Insanity. Any of his papers as a Justice were bought and paid for by the people of this country, and should be INSTANTLY in the public domain. We have that right, we PAID for them.
I'm curious, do you have that right for everything the NSA and CIA knows, too?
Insanity. Any of his papers as a Justice were bought and paid for by the people of this country, and should be INSTANTLY in the public domain. We have that right, we PAID for them.
Tell you what, you finish reading through all of his work product you paid for in the U.S. Reports, then we can talk about the rest of it.
To keep things interesting, I'll promise that if you make it all the way through the published Souter opinions (dissents included!), I'll buy Orin a beer.
Insanity. Any of his papers as a Justice were bought and paid for by the people of this country, and should be INSTANTLY in the public domain. We have that right, we PAID for them.
Just because we paid for the paper doesn't mean we have any sort of rights over the things written on it. Maybe he bought his own pens.
I think blog comments have made it exceedingly difficult to distinguish between satire and sincerity, especially when a comment seems really angry... I honestly can't tell if PeterP is serious or not.
Since my taxpayer dollars funded Justice Souter's health insurance, I think at least one of his kidneys is now in the public domain too.
In seriousness, it creeps me out a bit when the Justices' papers become public and 30-year-old semiprivate correspondence with other people is open for public consumption. Reading Tony Mauro's post about Diane Wood's clerkship application in the Blackmun papers was both fascinating and creepy.
Orin - "I'm curious, do you have that right for everything the NSA and CIA knows, too?"
No. Did I say that ? Are you saying you consider the NSA and CIA to be in the same domain of public responsibility as SCOTUS ?
Perhaps you are arguing that any and all government agencies and employees should be allowed to determine for themselves how long their work product is locked up for ?
Is 100 years OK with you ? 150 ? How about 500 ?
After redaction of national security info, if any, Souter's work product papers are a reflection of how he went about setting national policy via the bench. They belong to the company he worked for, US, and should be left at his office to be logged and made available to his employer, US. This is exactly the same as any private employee leaving a job.
I'm not a lawyer or court follower so don't understand what a Justice might have in his records excepting national security info and personal data that deserves to be protected. When someone has information they want to hide from the public, I become suspicious.
I'm curious, do you have that right for everything the NSA and CIA knows, too?
In my opinion, yes. Perhaps not while in public dissemination would put the safety of American's at risk. But within a few years, definitely. How much of Justice Souter's work needs to be secret in order to protect national security? And I'm not talking about embarrassing public figures.
Just because we paid for the paper doesn't mean we have any sort of rights over the things written on it. Maybe he bought his own pens.
I don't think the point is we bought the paper, but rather that we paid him and his staff to put the words on the paper.
Not to mention, I believe that there are statutes requiring such things to be in the public domain. And sunlight laws requiring that the information be available to the public as well.
When someone has information they want to hide from the public, I become suspicious.
Again, the sarcasm-meter isn't processing comments in this thread very well. Not everyone's an exhibitionist. I'm not sure what's so suspicious about Souter's conditions. I imagine that there's a lot of stuff in there that's somewhere in the gray area between public and private correspondence. If I'd written a letter to a public figure not meant for public consumption, I'd probably be annoyed if it showed up on the internet a few years later.
Another thought occurs. Ignoring all other aspects of the situation, given Souter's age, why would he expect the right to deny access to his papers beyond his death? Doesn't the right to privacy go away when an individual dies?
Well, according to the article, these are both professional and personal papers that he donated to the New Hampshire Historical Society. These aren't papers held by NARA (I don't know even if there are any offical government documents in the bequest, though certainly I'd imagine a many of them would be related to the SC or created while he was a sitting justice). While 50 years is a long time, it is very common for people to put a hold on access to their personal/professional papers when they donate them to a library, university, etc.--it doesn't necessarily mean there is some incriminating evidence.
Another thought occurs. Ignoring all other aspects of the situation, given Souter's age, why would he expect the right to deny access to his papers beyond his death? Doesn't the right to privacy go away when an individual dies?
No. In this case it may be a matter of copyright. Access to Justice Souter's personal papers would certainly be controlled by him and then his estate as long as he made those wishes known. The professional papers would depend on who owns the copyright. According to modern IP law, 50 years may be quite generous.
I'm not a lawyer or court follower so don't understand what a Justice might have in his records excepting national security info and personal data that deserves to be protected.
Earl Warren's papers at the Library of Congress are partially classified. The finding aid has general descriptions of what the classified documents are. As I recall, most of them are related to evacuation plans for the Supreme Court building in the event of a disaster, things along those lines. I can see why they might be kept out of the public eye.
why would he expect the right to deny access to his papers beyond his death?
Even though Hugo Black's papers are sitting in a drawer at the Library of Congress, you need his family's permission to actually look at them. (I.e., the librarians won't retrieve the files from the back room unless you present them a letter from his family.) I don't know the ownership arrangement -- if Black's family owns the papers and has them on permanent loan to the Library, if the Library owns them but, as a condition of the gift, has to ensure permission, etc. -- but it's not unheard of. (Also, as regards this stuff being the work product of the US, it's worth noting that Black burned huge swaths of his papers soon after retiring, or perhaps even while still on the court. For example, none of his notes from conference exist any more.)
Addressing the questions seriously for a moment, I don't know what's in these particular papers, but the concern that judges (taking the term to include Justices) tend to have about their personal papers is that the papers would reveal internal deliberative processes within the court -- unpublished drafts of opinions, notes between judges, and memos from clerk to judge. So, from a policy perspective, one would want to balance the historical interest of the materials with the fear that immediate disclosure would lead to a chilling effect on judges and clerks who would then view everything they wrote as being "for publication" in the near future.
To take an example with a different political valence than Justice Souter's papers, consider whether the young William Rehnquist, as a clerk, might have written his memos to Justice Jackson a little differently if he knew they were going to be fodder for his own eventual confirmation hearings. (Although maybe he wouldn't have! It all turned out well enough for him.)
Justice Souter's choice of a fifty-year period would tend to indicate that he views confidentiality and privacy as particularly important when balanced against journalism and short-term history. That shouldn't really be a surprise to anyone. Justice Blackmun, for example, struck the balance differently, which is why we saw his papers while some of his former colleagues were still on the bench, to say nothing of his former clerks still in practice.
As for the arguments that the decision shouldn't be in the individual Justice's hands -- there's some logic to that, I admit, and I suppose Congress could pass a law to regularize the process, similar to the laws governing presidential documents. I don't think a law mandating immediate release would be a great idea. In any event, Congress hasn't acted to date, and tradition leaves the decision to each Justice.
It's my impression Souter has been keeping a detailed diary the whole time he was on the Court (if not before). There could be genuinely juicy stuff there Souter wants future historians to know, but no-one in the present.
Perhaps I am mistaken, but I thought Souter was never married and has no children, no siblings, etc, parents and grandparents are dead. So there is no one there to be embarassed by anything once he kicks off.
Perhaps his records record sexual fantasies about the other current justices, including Roberts and Alito and he wants them dead before the records are released?
Comparing Souter's personal diaries and papers to national security records is laughable.
Insanity. Any of his papers as a Justice were bought and paid for by the people of this country, and should be INSTANTLY in the public domain. We have that right, we PAID for them.
So the justices' deliberations are just commodities to be bought and paid for, eh? Why do you suppose that the conferences are conducted in private, with only the justices present, and not even a clerk or secretary allowed to intrude? By your theory, they should be conducted on the front steps of the Supreme Court building, with TV cameras trained on all of the justices. If that were the case, the justices would play to the crowd, saying what will sound good on the evening news and not saying anything that Limbaugh or O'Reilley could tear apart the next day. Chilling effect? It would be a deep freeze. Carried to its illogical extreme, your theory would mean that nothing in government is entitled to confidentiality, because we bought and paid for it all.
Why do you suppose that the conferences are conducted in private, with only the justices present, and not even a clerk or secretary allowed to intrude?
If a judge received information in a confidential conference and decides a case based on that information, shouldn't it be part of the record?
Judges have an obligation to disclose their reasoning in cases, particularly in close cases, to preserve the rule of law. If judges are considering information outside of what is written and published in opinions, then there is a separate "shadow law" that exists only for those who know about it.
PC:
In this case it may be a matter of copyright.
Anything relating to his official duties would be works made for hire by the U.S. Government, see 17 U.S. § 101, and not eligible for copyright protection, see 17 U.S. § 105.
It may be an act of consideration for others. What if some of the information or correspondence could prove damaging to the careers of clerks who are still fairly young? Having witnessed the kinds of digging for information that go on (see one example in the comments above, with Diane Wood), maybe he thought it would be best to pick a date after everyone he worked with would be done with their careers.
Dangermouse's proposed entries omit the key events that conservatives always point to with folks like Souter: the cocktail parties in fashionable Georgetown salons that seduce well-meaning conservatives into satanic liberalism.
Souter's an empty suit anyway. Who cares what he has to say?
8.28.2009 8:30pm
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July 25, 1990: Those fools! If I keep my mouth shut, all will be well. I can't wait to get on and really show the country who's boss. It'll be great fun once o' George realizes that I've stabbed him in the back.
October 9, 1990: VICTORY! MOWHAHAHAHAHAHA!!! Now I can rule! RULE!!!!!!
It's what I'd expect.
I'm curious, do you have that right for everything the NSA and CIA knows, too?
Tell you what, you finish reading through all of his work product you paid for in the U.S. Reports, then we can talk about the rest of it.
To keep things interesting, I'll promise that if you make it all the way through the published Souter opinions (dissents included!), I'll buy Orin a beer.
Just because we paid for the paper doesn't mean we have any sort of rights over the things written on it. Maybe he bought his own pens.
Since my taxpayer dollars funded Justice Souter's health insurance, I think at least one of his kidneys is now in the public domain too.
No. Did I say that ? Are you saying you consider the NSA and CIA to be in the same domain of public responsibility as SCOTUS ?
Perhaps you are arguing that any and all government agencies and employees should be allowed to determine for themselves how long their work product is locked up for ?
Is 100 years OK with you ? 150 ? How about 500 ?
After redaction of national security info, if any, Souter's work product papers are a reflection of how he went about setting national policy via the bench. They belong to the company he worked for, US, and should be left at his office to be logged and made available to his employer, US. This is exactly the same as any private employee leaving a job.
Do you think this equates to NSA / CIA / etc ?
See my first post in this thread for a clue as to why Souter would want his papers private.
In my opinion, yes. Perhaps not while in public dissemination would put the safety of American's at risk. But within a few years, definitely. How much of Justice Souter's work needs to be secret in order to protect national security? And I'm not talking about embarrassing public figures.
I don't think the point is we bought the paper, but rather that we paid him and his staff to put the words on the paper.
Not to mention, I believe that there are statutes requiring such things to be in the public domain. And sunlight laws requiring that the information be available to the public as well.
Again, the sarcasm-meter isn't processing comments in this thread very well. Not everyone's an exhibitionist. I'm not sure what's so suspicious about Souter's conditions. I imagine that there's a lot of stuff in there that's somewhere in the gray area between public and private correspondence. If I'd written a letter to a public figure not meant for public consumption, I'd probably be annoyed if it showed up on the internet a few years later.
No. In this case it may be a matter of copyright. Access to Justice Souter's personal papers would certainly be controlled by him and then his estate as long as he made those wishes known. The professional papers would depend on who owns the copyright. According to modern IP law, 50 years may be quite generous.
I'm not a lawyer or court follower so don't understand what a Justice might have in his records excepting national security info and personal data that deserves to be protected.
Earl Warren's papers at the Library of Congress are partially classified. The finding aid has general descriptions of what the classified documents are. As I recall, most of them are related to evacuation plans for the Supreme Court building in the event of a disaster, things along those lines. I can see why they might be kept out of the public eye.
why would he expect the right to deny access to his papers beyond his death?
Even though Hugo Black's papers are sitting in a drawer at the Library of Congress, you need his family's permission to actually look at them. (I.e., the librarians won't retrieve the files from the back room unless you present them a letter from his family.) I don't know the ownership arrangement -- if Black's family owns the papers and has them on permanent loan to the Library, if the Library owns them but, as a condition of the gift, has to ensure permission, etc. -- but it's not unheard of. (Also, as regards this stuff being the work product of the US, it's worth noting that Black burned huge swaths of his papers soon after retiring, or perhaps even while still on the court. For example, none of his notes from conference exist any more.)
I hear Geraldo already has the special scheduled, 50 years from now.
To take an example with a different political valence than Justice Souter's papers, consider whether the young William Rehnquist, as a clerk, might have written his memos to Justice Jackson a little differently if he knew they were going to be fodder for his own eventual confirmation hearings. (Although maybe he wouldn't have! It all turned out well enough for him.)
Justice Souter's choice of a fifty-year period would tend to indicate that he views confidentiality and privacy as particularly important when balanced against journalism and short-term history. That shouldn't really be a surprise to anyone. Justice Blackmun, for example, struck the balance differently, which is why we saw his papers while some of his former colleagues were still on the bench, to say nothing of his former clerks still in practice.
As for the arguments that the decision shouldn't be in the individual Justice's hands -- there's some logic to that, I admit, and I suppose Congress could pass a law to regularize the process, similar to the laws governing presidential documents. I don't think a law mandating immediate release would be a great idea. In any event, Congress hasn't acted to date, and tradition leaves the decision to each Justice.
Funnier than my proposed comment.
But, seriously, who will possibly be interested in a mediocre at best non-entity like Souter in 50 years?
Or 30? or 10? Or 1?.
Perhaps his records record sexual fantasies about the other current justices, including Roberts and Alito and he wants them dead before the records are released?
Comparing Souter's personal diaries and papers to national security records is laughable.
So the justices' deliberations are just commodities to be bought and paid for, eh? Why do you suppose that the conferences are conducted in private, with only the justices present, and not even a clerk or secretary allowed to intrude? By your theory, they should be conducted on the front steps of the Supreme Court building, with TV cameras trained on all of the justices. If that were the case, the justices would play to the crowd, saying what will sound good on the evening news and not saying anything that Limbaugh or O'Reilley could tear apart the next day. Chilling effect? It would be a deep freeze. Carried to its illogical extreme, your theory would mean that nothing in government is entitled to confidentiality, because we bought and paid for it all.
If a judge received information in a confidential conference and decides a case based on that information, shouldn't it be part of the record?
Judges have an obligation to disclose their reasoning in cases, particularly in close cases, to preserve the rule of law. If judges are considering information outside of what is written and published in opinions, then there is a separate "shadow law" that exists only for those who know about it.
PC:
Anything relating to his official duties would be works made for hire by the U.S. Government, see 17 U.S. § 101, and not eligible for copyright protection, see 17 U.S. § 105.
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.