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Retirement of Justice Stevens Would Allow Release of Potter Stewart Papers

Posted Oct 2, 2009 7:01 AM CDT
By Debra Cassens Weiss

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Last month, court watchers noted that Justice John Paul Stevens has hired only one law clerk for 2010, leading to speculation he would announce his retirement at the end of the Supreme Court term.

If that happens, a new window will open, former Supreme Court reporter Linda Greenhouse writes in a New York Times op-ed. The late Justice Potter Stewart had stipulated at the time of his retirement that his papers could not be released until the retirement of the last justice to have served with him. Stevens is the last justice.

Greenhouse contrasts Stewart’s decision with that of recently retired Justice David H. Souter. He has restricted release of his papers for 50 years.

“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,” Greenhouse writes. “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.”

Greenhouse gives an example of one of the mysteries she would like to solve. It involves a surprise decision about the preclearance requirement in the Voting Rights Act. The Supreme Court avoided the constitutional issue with an opinion that said the water district challenging the provision might be exempted from the law, so it could not complain.

Greenhouse calls the result an “implausible outcome” and says she suspects swing voter Justice Anthony M. Kennedy got cold feet, retreating from the idea of overturning the law.

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