The Marshall Papers

May 30, 1993

The decision by the Library of Congress to make Justic Thurgood Marshall's papers available to the public now was unfortunate. We say that as a newspaper that has often urged the Supreme Court and justices to make the public more aware '' of what the court does and how it does it, to dispel secrecy as much as possible.

Certainly the Marshall papers pull aside the veil of secrecy. There are preliminary drafts of opinions showing how changes were made to attract votes by other justices, memos describing the inner conflicts of and accommodations by the justices and other such closely guarded mediums of communication among secretive justices.

It's good stuff that ought to be released. But our problem is the timing and the "come-one, come-all" access to the papers given by Librarian of Congress James Billington. Justice Marshall specified in the instrument of gift of his papers that after his death the papers "shall be made available to the public at the discretion of the Library." He specified that the material "be limited to private study on the premises of the Library by researchers or scholars engaged in serious research."

Timing. Justice Marshall surely assumed that the library would be discreet enough not to release such papers till a decent interval had elapsed after the cases and controversies described in the papers. That has been the usual if not universal practice. Only four months have passed since Justice Marshall died -- and less than two years have passed since some of the decisions he discusses.

Access. Dr. Billington seems to have ruled out only "high school students and tourists" from looking at and copying the Marshall papers. Many of the "researchers" now engaged in studying the papers are lawyers' paralegals looking for clues about how best to influence justices when next they represent clients before the court. That's "serious," but is it "research" in the sense that Justice Marshall had in mind? We doubt it. Many of the other researchers are journalists who are rushing into print or on the air after barely dipping into the 173,700 items dealing with Justice Marshall's pre-court career and some 3,000 cases that came before the court after he joined it. Some of this reporting is shallow and misleading.

The Marshall papers are not the Nixon tapes. They reveal little or nothing that those interested in the Supreme Court routine and in these particular justices did not already know or suspect -- from their opinions, other writings, interviews, speeches, ex-clerks' tales and so forth. What is important to remember in the debate over the papers and the court's extraordinary protectiveness about confidentiality is that in the final analysis, what matters about the Supreme Court is not exactly how -- blow by blow -- decisions and written opinions are arrived at, but the decisions and opinions themselves.

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