In 2009 when Justice Souter retired, the Blog of the Legal Times reported that his papers would be released in 50 years. My buddy Mike Sacks and I made a pact to visit the New Hampshire Historical Society in 2059. In that year, god willing, I will be 75, which is Justice Souter’s age today.
It turns out the papers won’t be available in 2059, or 2060, or even 2064. We don’t know when they will be available, because Justice Souter instructed the New Hampshire Historical Society to release them 50 years after his death. Thanks to the inquisitiveness of Gerard Magliocca, and the reporting of Tony Mauro, we now know that Souter threatened to incinerate his papers if they were not embargoed for half a century after his death.
Justice Souter told Gerard:
“I have given such papers as I’ve retained to the New Hampshire Historical Society, to be opened for inspection after the 50th anniversary of my death. By that time, they will be of interest only to the historians taking the long view.”
“As I’ve retained” suggests there are other papers that are not retained–in other words, destroyed.
Tony reported that the Executive Director of the Historical Society said Souter was “emphatic” about the embargo.
Bill Veillette, the historical society’s executive director in 2009, also confirmed on Wednesday that Souter’s wish all along was for release of his papers 50 years after his death, not his retirement.
“He was very emphatic about it,” Veillette recalled. “He told me, ‘I’ve got an incinerator outside my house, and either you agree to 50 years after my death, or they go into the incinerator.’” Since many papers are donated by families decades or centuries after a notable person’s death, Veillette said Souter’s 50-year delay seemed relatively brief. Veillette is now the executive director of the Northeast Document Conservation Center in Massachusetts.
If Justice Souter lives to be Justice Stevens’s current age, then the papers will not be released until 2085. I will be 101 in that year. If I’m even still around, there is a distinct possibility that I will be one of the few remaining lawyers who knew of Justice Souter as an active Justice. What a travesty. I hate to break it to Justice Souter, but by the time 2085 comes along, I don’t think any historians will care much about him, or his role on the Court. And that’s exactly the way he wants it.
Woman in Gold tells the story of Maria Altmann, who sued the Austrian Government to recover paintings that were stolen by the Nazis. This case culminated in the Supreme Court’s 2004 decision in Republic of Austria v. Altmann, finding that the Foreign Sovereign Immunities Act was not retroactive, and did not serve as a jurisdictional bar. The movie itself was okay (great story, weak acting other than Helen Mirren), but the scene in the Supreme Court was so terrible, I laughed out loud in the theater.
The entire scene lasted maybe two minutes, and it was painfully inaccurate.
First, the design of the Court wasn’t even close. There were red curtains on the side, no bar separating the lawyers from the audience, and Altmann (the client) sat second chair! Before the hearing started, she took out a box of cough drops and gave one to her lawyer, Schoenberg.
The actors they selected to play the Justices were passable, but the name tag in front of Chief Justice Rehnquist was absurd. (At least they got the gold stripes).
Also, why in the world is there a fan next to Justice Breyer!? Is he not cool enough on his own (don’t answer that).
Justices Kennedy and Thomas have a carafe of water in front of them:
And Justice O’Connor has a proper neck doily.
I could not find a video with Justices Stevens, Scalia, Souter, and Ginsburg.
Second, the petitioner got up, said “I’ll be concise”, and made an argument for about 15 seconds. That’s it. Then he sat down. He gets no questions.
Third, the United States got up. The lawyer playing Deputy Solicitor General Thomas Hungar looked like he was about 70 years old. At least he was wearing a morning coat. He said something about how if this case goes forwards, other claims against Japan may be brought. This actually happened:
Chief Justice Rehnquist: Yes.
Mr. Hungar: The… we… there are currently cases pending against countries such as Japan and Poland, with which… which this country previously entered into agreements which both sides thought had resolved the issue entirely, and to now retroactively apply a substantive provision that this Court recognized in Ex parte Peru is a substantive, not merely jurisdictional, but a substantive legal defense, to apply that retroactively would be to change settled expectations, change the rules, and it should not be done.
Then Chief Justice Rehnquist looked at the octogenarian Altmann, and said something to the effect of, “If we rule for you, then we have to worry about claims from Japan.” Everyone in the audience started laughing. (Well, the Chief did join Justice Kennedy’s dissent, ruling against Altmann, so maybe he was thinking this.).
Fourth, Schoenberg’s argument was so, so, so terrible. Here is a rough transcript:
We’re very sensitive to the government’s concerns, Mr. Chief Justice. It is the can of worms argument . . . . We recommend opening the can. And extracting one little worm with a pair of tweezers and quickly closing it shut again . . . . This is a case of one woman, wanting back what is rightfully hers . . . . Let’s give her justice too.
Yes, this is actually the argument made. I burst out laughing. I couldn’t help it.
Perhaps the only thing that was semi-accurate was that in the movie Chief Justice Rehnquist asked a question of Schoenberg. I had no idea what the question was, something about jurisdiction that made no sense. In the movie, Schoenberg replied something to the effect of “I didn’t understand that question.” Apparently, that actually was said. Justice Souter asked some question, and Shoenberg replied:
“Well, I’m . . . I’m not sure that I understand the question.” (Turn to 27:59 on Oyez).
There was one scene earlier in the movie where Ronald Lauder (the heir to the Estee Lauder fortune) unsuccessfully tries to get Altmann to drop her lawyer and have someone more experienced argue before the Court. (Her lawyer had never argued a case before SCOTUS before). According to “Lady in Gold,” the book that was the basis for the movie, Lauder suggested that she hire Robert Bork! According to Oyez, Bork only had one argument since the 1990s–the 2002 case of Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. The role of Lauder was played by some actor named Ben Miles, but I think Tom Goldstein could have pulled it off much more naturally–and maybe he would have snagged the client too!
Watch the clip at your own peril. It’s painful to watch.
The Times has an important overview of the President’s decision to back down from vetoing the bill of Iranian sanctions in the face of a veto-proof majority. The article ties together gridlock and executive power, and makes clear that when even the President’s own party thinks he has over-reached, he acquiesces.
In his assertions of executive power to advance his agenda in an era of gridlock, President Obama has been largely on offense. But his latest battle with Congress not only left him on defense, it actually broke the gridlock. Against him.
Mr. Obama’s abrupt decision to sign a compromise version of legislation on Iran that he had previously vowed to veto was a bruising retreat in his larger campaign to act without Congress’s getting in his way. In this case, partisanship gave way to rare consensus on Capitol Hill: Both sides agreed that he was wrong to cut them out.
The White House tried to make the best of the setback, arguing that the bipartisan bill was less objectionable than the initial draft. But the president’s concession in the face of potentially veto-proof majorities underscored that even his fellow Democrats believed he had overreached in trying to operate on his own. And it suggested that he may be approaching the outer boundaries of his authority with 21 months left in office.
I can’t imagine any other circumstances where the President’s own party would stand up against his domestic policies, for example with respect to immigration or Obamacare. Maybe, for now at least, foreign policy is still a safe zone for bipartisanship.
I would counter that the watered-down bill which the President signed has few meaningful restraints, and lets the President negotiate unfettered. As Yishai Schwartz noted on Lawfare, the President is “perfectly pleased” to sign this new deal.
The White House gained the high ground in any confrontation over the Iran deal the moment its lawyers discovered the sanctions regime could be dismantled by executive action. From then on, Congress and the potential deal’s critics have been playing defense. The delay period imposed by the revised Iran Nuclear Agreement Review Act at least offers some check on the executive. But a check of some sort was likely inevitable—and this one is rather minimal. In the long-term, the appearance of this check may simply offer the president a bit more legitimacy as he unilaterally carries a deal across the finish line.
This bipartisan bill may have been a way to shield the President from a tougher bill. Now, he can show face. The Times explains:
Still, as a practical matter, this bill is no more likely to actually stop the deal with Iran than the original version. Under either version, Congress could pass a resolution rejecting the Iran agreement, but Mr. Obama could veto it, meaning he needs to hold onto no more than 34 senators or 146 House members to prevent an override.
As a side note, the President says he has “exhausted” his executive powers.
And during an appearance here on Wednesday to talk about issues like pay equity, Mr. Obama acknowledged that he had fewer options left for using his power without congressional support. “We’ve probably exhausted what I can do through executive actions,” he told a woman who asked if he could do more on his own to equalize pay between men and women.
Color me not persuaded. He made these exact comments after DACA, and said he could not expand his powers with respect to immigration. Then, we got DAPA.
