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Rehnquist Slams Marshall Papers' Release : Judiciary: Library of Congress criticized for giving early access to files. Court, late jurist's family were not consulted, chief justice says.

May 26, 1993|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — In an unusual, sharply worded letter to the librarian of Congress, Chief Justice William H. Rehnquist said Tuesday he was "surprised and disappointed" that library officials gave the public access to the papers of the late Justice Thurgood Marshall less than two years after he left the court.

No member of the Marshall family or official of the court was consulted before the papers were released, Rehnquist said.

"Given the court's long tradition of confidentiality in its deliberations, we believe this failure to consult reflects bad judgment on the part of the library," the chief justice wrote on behalf of the court.

Marshall's files, which fill up several hundred boxes at the library, include drafts of court opinions and memos that circulated among the justices.

The notes show the justices to be scholarly and intensely serious about their work. But the justices have long insisted that their internal debates be kept secret, and Rehnquist has argued that the justices can resolve legal disputes more effectively if they can negotiate their differences in private.

During his lifetime, Marshall voiced the same view. But in November, 1991, just 14 months before his death, the 83-year-old justice signed an agreement giving the library custody of his papers.

The agreement stipulated that after his death, the papers "shall be made available to the public at the discretion of the library." It was unclear, however, whether he actually intended for the papers to be released so soon.

In January, when Marshall died, the library opened his papers for public inspection. But they went unnoticed until this week when the Washington Post published several articles about their contents.

Washington attorney William T. Coleman, a longtime friend of Marshall and his family, has also denounced the library for releasing the papers, saying that the late justice would have abhorred making confidential files public.

"I will say that it is the worst thing I have seen happen in a long time around this town," Coleman told the Post.

Since the controversy began, the librarian, James H. Billington, has been out of the country and unavailable for comment. But aides said he would return to Washington today.

In the past, papers from the justices have generally been released decades after they died and long after the justices they served with had retired. By contrast, Marshall's files include cases that were decided as late as June, 1991, and involve controversies such as abortion and affirmative action that remain unsettled.

In his letter, Rehnquist wrote that a majority of the justices was "surprised and disappointed" by the library's opening of the files.

Rehnquist noted that "after the passage of a certain amount of time, our papers should be made available for historical research. But to release Justice Marshall's papers dealing with deliberations which occurred as recently as two terms ago is something quite different," he wrote.

Unless the library offers a better explanation for its action, the chief justice concluded, "future donors of judicial papers will be inclined to look elsewhere for a repository."

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