Justices assail airing of Marshall's papers Rehnquist calls release premature

May 26, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A majority of the Supreme Court justices rose up angrily against the Library of Congress yesterday for letting the public in on some of the court's latest -- and usually best-kept -- secrets.

Hinting that they want the library to do more to justify making public the papers of the late Justice Thurgood Marshall -- papers that reveal private deliberations as recent as two years ago -- the majority threatened to send their own files somewhere else.

Chief Justice William H. Rehnquist put on an extraordinary public display of the justices' personal pique over what they regarded as a violation of their usual secrecy by releasing a letter he had an aide deliver by hand to Librarian of Congress James H. Bil-lington's office.

The chief justice said he was speaking for "a majority," which a court aide described as most but not all of the nine justices.

Bluntly, the letter accused the library of "bad judgment" for not consulting the court or members of Justice Marshall's family about the timing of release.

The family's lawyer, William T. Coleman, who has been trying to persuade the library to restrict access to the papers, did not return calls yesterday.

It was not clear from the Rehnquist letter whether the justices were endorsing Mr. Coleman's efforts to remove the documents from public shelves.

The library staff remained firm yesterday in its view that the early release of the 146,000 papers was exactly what Justice Marshall had wanted.

"We think it's a clear intention," said Jill Brent, a library spokeswoman. She released the legal paper Justice Marshall used to donate the documents, along with a chronology of the library's dealings with him about the donation.

All of the donation documents were being assembled for Mr. Billington to review when he returns to work today after a trip to Korea. Since the Washington Post on Sunday first started publishing details from the papers covering Justice Marshall's 24 years on the court, the library's manuscript room has been crowded with journalists and others poring over internal papers of a kind almost never made public until years after the events they cover.

Justice Marshall died Jan. 24, and his papers were made available as soon as the library staff finished processing them.

The chief justice's letter seemed designed to put Mr. Billington on notice that a failure to provide a fuller explanation for the release of the Marshall papers would be punished with the future loss of the files of most of the current justices.

"Unless there is some presently unknown basis for the library's action, we think it is such that future donors of judicial papers will be inclined to look elsewhere for a repository," he wrote.

The court, legally, has no other way of punishing the library's action. By tradition, the justices have assumed they owned their official files and have controlled what happened to them, but no law gives the court power to control what the library does with papers it gets from any individual justice or other public figure.

Although the Marshall file contains many documents written by other justices and sent to him, no justice can copyright any official paper.

Toni House, the court's spokeswoman, would make no comment to further explain Chief Justice Rehnquist's letter.

The letter put the court majority and the library staff in open disagreement over the meaning of the legal deed Justice Marshall used to give his court papers to the library.

The Rehnquist letter accused the library of reading the deed too loosely, but the library staff said the court itself was misreading the technical terms of the deed.

The chief justice's letter said that most justices recognize the value of releasing their papers after the passage of some time, but "to release Justice Marshall's papers dealing with deliberations which occurred as recently as two terms ago is something quite different."

Two of the current justices, Sandra Day O'Connor and Byron R. White, have been sending some of their papers to the library. It was unclear whether they endorsed the Rehnquist letter.

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