Library of Congress -- or School for Scandal?

Crystal Nix & Sheryll D. Cashin

May 28, 1993|By Crystal Nix & Sheryll D. Cashin

AS LAW clerks to Justice Thurgood Marshall in his final two years at the Supreme Court, we are dismayed by the Library of Congress' indiscriminate release of Justice Marshall's court papers to the public. We are certain that his wishes have not been honored.

In many separate conversations with us -- including during the fall of 1991, when Justice Marshall allegedly permitted full access to his papers upon his death -- Justice Marshall made clear how greatly he valued the confidentiality of the court's deliberations and that he had no intention of violating that ethic.

As a matter of fact, a few years ago he had promptly returned a six-figure advance on a book contract when he learned that the publisher expected him to reveal the court's internal deliberations.

Last spring, after news organizations reported that a former Supreme Court clerk planned to write a book on the court, Justice Marshall expressed dismay, even though the book was intended to be a scholarly analysis of the court's jurisprudence and not a disclosure of its deliberations.

He said he did not believe that anyone who had inside knowledge of the court should discuss its inner workings, in any manner and under any circumstances. He initially planned to destroy his papers until friends talked him out of it.

After Justice Marshall retired, we watched him turn down hundreds of requests for books, interviews and public speeches. He even declined to consider requests from family members and friends that he write a memoir of his life prior to his appointment to the court. The two of us bore the brunt of his furor when we tried to prevail upon him shortly after his retirement in 1991 to write a memoir about his life as a civil rights lawyer.

Throughout our respective clerkships, Justice Marshall -- intensely aware of the scrutiny and responsibilities that came with being the first black Justice on the court -- stated repeatedly that he did not intend to violate the court's tradition of confidentiality, which he saw as essential to unfettered collective deliberation.

"I don't want people to be able to say, 'See, you can't trust those Negroes,'" he would often say.

It is true that the contract prepared by the the Library of Congress gave officials "discretion" to release his papers after death. But Justice Marshall signed the agreement in the context of the library's long tradition of respect for the confidentiality of the court's deliberations.

In that sense, the library has betrayed its own history and violated Justice Marshall's clear intention.

Previously, the Library of Congress had withheld documents concerning cases recently decided by the court or by justices still active on the court and had limited access to a justice's papers to serious historians and scholars.

Moreover, the agreement Justice Marshall signed, which we have seen, stated expressly that the papers would be given only to "researchers or scholars engaged in serious research" -- a limitation that should have made clear that reporters, litigators and voyeurs were not intended to have access.

If the deplorable current practice of the library prevails, justices currently writing on critical legal issues may now shirk from robust argument for fear that their draft opinions and memos may be disclosed in newspapers a mere two years hence.

If, however, the Library of Congress returns to its previous practice of withholding recent documents,Justice Marshall will TC have the dubious distinction of being the only Supreme Court justice who revealed the deliberations of currently sitting justices to the outside world.

Either way, Justice Marshall's deepest intentions and legacy will be undermined. Library officials have no excuse for not double-checking with Justice Marshall or his family about his intentions.

Yet library officials continue even now to give indiscriminate access to the public despite the express terms in the contract and strong opposition from family and friends, who, unlike library officials, actually knew him well.

This displays arrogance, disrespect and gross disregard for the truth. Justice Marshall and the court deserve better.

Crystal Nix clerked for Justice Thurgood Marshall in 1991-92. Sheryll D. Cashin clerked for him in 1990-91.

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