Marshall's papers give rare look behind the scenes at the Supreme Court

May 25, 1993|By New York Times News Service

WASHINGTON -- When the Supreme Court first considered whether the Constitution should protect private homosexual acts, the justices showed little interest. Only two of the nine voted in 1985 even to hear the case of an Atlanta man arrested for having sex with another man in his own bedroom.

But over the next year and a half, the case known as Bowers vs. Hardwick became a high-stakes poker game among the justices, as conservatives and liberals on the court struggled behind the scenes to make it a definitive constitutional statement on homosexual rights.

The twists and turns of the Georgia homosexuality case are detailed in the private papers of the late Justice Thurgood Marshall, which were made available to the public recently, only two years after he left the court.

The papers portray a group of justices concerned with such minutiae as repairing the court's front steps and conducting intricate negotiations to deal with the greatest moral and legal issues of the day.

The documents provide an extraordinary glimpse of the behind-the-scenes evolution of cases involving abortion, the rights of homosexuals, criminal issues and civil rights. The release of a justice's private papers to the general public so soon after his retirement is rare in modern Supreme Court history because it reveals much about colleagues still on the court and about issues that are still hotly debated.

The Library of Congress said that Justice Marshall, who died at 84 in January, agreed to have his papers made available to the public shortly after his death.

Justice Marshall's longtime personal lawyer, William T. Coleman, complained yesterday about the decision of the library to release the documents so soon after his death and while many of those Justice Marshall wrote about remain active on the court. Mr. Coleman said Justice Marshall initially wanted all his papers destroyed upon his death. But Mr. Coleman said he persuaded Justice Marshall to have the papers preserved for history.

Many of the details contained in the 173,700 papers, which take up more than 231 feet of shelf space at the library, were first reported this week in the Washington Post and will provide material for scholars for years to come. The documents cover most of Justice Marshall's government career, including his life as a federal appeals court judge and U.S. solicitor general as well as his 24-year Supreme Court career.

They chronicle how the ideological fulcrum inexorably shifted away from his liberal outlook that fit comfortably when he first joined the court but by the end of his career often left him in the role of dissenter on the margin.

Although in his later years, Justice Marshall had little influence on the court's majority opinions, the value in his papers is that they include many of the documents that other justices circulated among themselves as they pondered seemingly insignificant administrative matters and also tried to cajole, exhort and plead with their colleagues as they tried to forge majorities in hotly contested cases.

The Marshall files show, for example, how Justice Sandra Day O'Connor, the court's first woman, struggled with the early abortion cases, finding it difficult to set a decisive course, sometimes disconcerting her colleagues.

The files also show how after Justice William J. Brennan Jr. retired in 1990, Justice Marshall became the lone voice on the court dissenting in all death-penalty cases, appending a brief footnote to the published opinions.

David J. Garrow, a historian who has been through the Marshall papers, said "Never before in American history have we had internal Supreme Court documents available within two years of the actual cases."

The chronicle of the Bowers homosexuality case throughout the Marshall files describes a series of shifting coalitions, with each side trying to prevent the case from even being heard when it seemed the other side might prevail.

The Bowers case is reviled by gays as the chief legal obstacle to equal rights for homosexuals.

In the internal debate over whether to hear the case, the poker-playing strategies became evident in the fall of 1985. The two justices who initially agreed to hear the case, Byron R. White vTC and Chief Justice Warren E. Burger, apparently perceived an opportunity to state clearly that the Constitution did not protect homosexual acts. But soon the court's liberals tried to have the case heard because they thought they could carry the day.

Suddenly, however, Justice Brennan apparently perceived that the tide had turned and he quickly withdrew his vote, hoping that now there would not be the four votes needed to hear the case. Justice William H. Rehnquist swiftly countered by adding his name. Justice Marshall apparently disagreed with Justice Brennan, his fellow liberal, and left his name on the vote to hear the case.

It was a decision he came to regret.

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