Papers penetrate wall of secrecy around court Marshall's legacy reveals details both weighty and whimsical

May 31, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Life at the Supreme Court, it seems, is a game of surviving in the midst of an ocean of paper -- some of it making great historical waves, much of it mere droplets of trivia.

Being a justice is also a test of humility: putting aside the vast power of deciding the great issues of the day to vote on the length of the Christmas recess -- three weeks or four -- or to go to a small ceremony to receive a gavel made out of the great elm tree that once stood on John Jay's lawn in Rye, N.Y.

That is what it is really like behind the big red curtains at the Supreme Court, according to a huge outpouring of documents at the Library of Congress, in the 573 fully-stuffed file boxes of the "Thurgood Marshall papers." Never in history has such a flood of usually secret information about the court come into public view so prominently. And never has the court let its temper fly in public as it did last week over disclosure of secrets it always guards closely.

The Washington Post's recent discovery that the Marshall papers were on the public shelves led a crowd of reporters, historians, legal scholars, lawyers and law-office interns to the library's manuscript section last week to leaf through or study the more than 173,000 items (and many times that number in actual pages). More than 100 individuals had signed up last week to do "research" in those papers in the manuscript section, and they turned up tidbits by the dozens -- including the home telephone numbers of Justice Sandra Day O'Connor and of the late President John F. Kennedy's daughter, Caroline.

What the row upon row of file boxes seem mainly to contain is a priceless collection of rare and small gems, very high in historic value, and not a threatening arsenal of scandalous bombshells. No careers of Supreme Court justices now sitting, and no reputations of those from the past, appear likely to be heavily soiled by what is being found.

Much of what the Marshall papers contain bears directly upon the court's own way -- sometimes very eccentric way -- of deciding cases, great and small. But turning over just a few more pages inevitably exposes another fascinating vignette of life among the justices.

The memo chase

Sometimes, the papers show that life can be a lesson in throwing one's weight around in Washington: like the angry memo from former Chief Justice Warren E. Burger, demanding that the U.S. Archivist explain how CBS News could get its hands on, and broadcast, part of a tape of the court's 1971 hearing in the historic "Pentagon Papers" case -- recordings kept at the Archives under a tight seal, never supposed to be heard on the air.

And the court is a place of sometimes nearly impenetrable isolation, even from other justices just down the hall: Several members of the court once agreed to let the same student from Cornell have a reserved seat for himself for a hearing on a major case -- before it was discovered by a court officer that the lad had cleverly asked every justice to accommodate him.

The court, too, is an institution where there are nearly endless tests of patience: waiting for the very deliberate Justice O'Connor to vote, circulating significant memos and getting no answer until everyone has been prodded, paying close attention to every jot and tittle of the sixth -- or the ninth -- draft of someone else's writing.

It also is a deeply human institution, where Justice Marshall could draw a heavy line through a law clerk's elegant explanation of why the justice had switched his vote on a case, writing in instead: "I goofed!"; where Justice Harry A. Blackmun would write a playful memo about how he would allow square dancing in the Great Hall when he was temporarily the "acting" chief justice while more senior colleagues were out of town; where then-Justice Lewis F. Powell Jr. could ask the advice of every colleague about whether he should write an opinion in a case involving Yeshiva University because he had once been given an honorary degree there (they all said to go ahead).

Intensely private

Within the court, the justices are very familiar with their humanity, their foibles, their eccentricities, but they passionately want all of that to stay within the court.

They absolutely abhor, in fact, the kind of public display now proceeding of the court's s secrets -- and, most of all, revelations about their internal deliberations. They believe, apparently without dissent among them, that disclosures of how they went about reaching a decision can only detract from the force and the majesty of the end-result opinion itself.

They police themselves rigorously, and they bottle up their law clerks effectively. Lawyers who served as law clerks at the court in the recent past remember what they describe as "the 20-second rule" -- "20 seconds after you are seen talking to a reporter, you are out of here!"

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