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Souter Speaks on Casey. Sort of.

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Josh Blackman | 9.24.2021 12:31 AM

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........

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