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Down the Memory Hole—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was published in The New York Times on October 2, 2009.

Down the Memory Hole
By Linda Greenhouse ’78 MSL

WHEN Justice John Paul Stevens retires from the Supreme Court, probably at the conclusion of the new term that begins on Monday, an era will end, but a window will open.

That is because Justice Stevens is the last remaining member of the court to have served with Justice Potter Stewart, an Eisenhower appointee who retired in 1981. When Justice Stewart gave his papers to Yale, his alma mater, he stipulated that the files from his 23-year Supreme Court tenure would become available only when none of his fellow justices remained on the bench. Whether Justice Stewart’s papers are particularly illuminating remains to be seen; even Paul Gewirtz, the Potter Stewart professor of constitutional law at Yale Law School, has no idea what is in them. But many active players in Supreme Court affairs — or at least active followers of the court during that consequential mid-century period — are still around, and it is reasonable to suppose that more than a few will make their way to the Sterling Memorial Library here to see for themselves.

Unless life expectancy expands significantly during the next half-century, that will not be the case by the time the papers of the court’s most recent retiree, David H. Souter, open to the public. Justice Souter announced in late summer that he had given his papers to the New Hampshire Historical Society in Concord, where they will remain closed for 50 years.

Given David Souter’s well-known penchant for privacy (he once said that television cameras would enter the Supreme Court only by rolling over his dead body), his decision is perhaps not surprising. But it is too bad. He served on the court for 19 years, a period that included most of William H. Rehnquist’s tenure as chief justice and the consolidation of conservative power under Chief Justice John G. Roberts Jr. No one who argued a case, brought a case or even read a case during those years — unless it’s one of today’s law students, swinging by Concord during an Elderhostel trip to New England to see the changing leaves — is likely to be examining Justice Souter’s files in 2059.

(One exception might be Savana Redding, the middle-school student whom school officials strip-searched on a quest for concealed Advil. In June, Justice Souter wrote the court’s majority opinion declaring that the search, which turned up nothing, was unconstitutional. Ms. Redding will be 70, the age that Justice Souter is now, when she can view the case file.)

Recognizing that my own chance of ever seeing Justice Souter’s files is less than slim, I tried to persuade myself that I didn’t really care. (I had already had my fun with Supreme Court files, writing a book in 2005 based on Justice Harry A. Blackmun’s papers.) But then I thought of all the Supreme Court mysteries I would like to solve with the help of the memos and drafts that I assume this longtime diary keeper would have preserved. In the interests of space, I will mention just one of these mysteries, from the court’s last term.

It is the surprising outcome of the big Voting Rights Act case, in which the court had undertaken to decide whether Congress exceeded its authority in renewing the requirement for some states and jurisdictions, mostly in the South, to obtain federal approval before making any change to a voting procedure, however minor. This “preclearance” provision, Section 5 of the act, was the key to the law’s effectiveness over three decades in expanding and preserving minority voting rights.

The court’s opinion, by Chief Justice Roberts, ducked the constitutional issue on the ground that the small Texas sewer district that brought the case might be entitled to “bail out” of the law and so might have nothing to complain about. This was an implausible outcome, to put it mildly, because the statute’s text actually made the sewer district and other small jurisdictions like it ineligible to escape the law’s provisions.

Chief Justice Roberts has won praise in some quarters for a statesmanlike, “minimalist” solution to a hot-button constitutional problem. I have strong doubts as to whether the praise is deserved. My belief is that he would have gone as far in the direction of declaring Section 5 unconstitutional as he could have and still hold a majority.

The court surely did not accept this case for argument (as opposed to simply affirming the law’s constitutionality, as the Bush administration had urged) in order to decide whether the Northwest Austin Municipal Utility District No. 1 was entitled to bail out. I suspect that a member of the once-eager majority, perhaps Justice Anthony M. Kennedy, got cold feet, and that one or more of the liberal justices, maybe even Justice Souter, brokered a deal that allowed the court to extricate itself from a tight spot. My evidence for this theory? Along with evidence for any other theory, it will be locked in a vault in Concord, N.H.

Linda Greenhouse, a former Supreme Court correspondent for The Times who teaches at Yale Law School, will begin a regular column on the law later this fall at nytimes.com/opinion.