Marshall retired in 1991 and died last January. For 24 years he was the high court’s most passionate liberal. He was also the court’s resident curmudgeon, often poking fun at Supreme stuffiness. Now, even from his grave in Arlington National, Marshall continues to confound. Never before have a justice’s papers been so freely available to the public so soon after the justice left. And not since the release of “The Brethren” in 1979, coauthored by Bob Woodward, has there been such a fury over the court’s secrets.
The Marshall material–draft opinions, horse-trading memos, the occasional dig–is hardly a mother lode for scholars. The papers of such justices as Felix Frankfurter and Hugo Black are far richer in personal observations about both colleagues and constitutional law. But Marshall’s do provide some nuggets about how the contemporary court handled issues ranging from abortion to affirmative action to homosexuality. On Roe v. Wade, in particular, the justices come across every bit as divided as the nation; had it not been for a change of heart by Justice Sandra Day O’Connor in a 1989 case, Roe would have been overruled.
But despite the political maelstroms swirling outside, the court shows itself to be a remarkably conscientious institution, its members more Victorian than Machiavellian. And, of course, the Marshall papers give a glimpse of nine human beings. When the highest jurists in the land are not busy resolving the fate of death-row inmates, they worry about party invites and whether to stock Chief Justice William Rehnquist’s book in the gift shop.
The papers most in demand at the Library concern the critical social issues of the past quarter century. Among the disclosures:
Abortion. Four years ago, the court was so close to overturning Roe that Justice Harry Blackmun prepared an impassioned dissent declaring that the landmark 1973 ruling creating a constitutional right to abortion “no longer survives.” Rehnquist thought he had marshaled the required five votes to strike Roe down. Yet he could never quite get O’Connor aboard the conservative bandwagon.
Over the course of two months, in flurries of court memos, the justices traded views and language. Throughout, O’Connor remained the pivotal swing vote. But she couldn’t bring herself to join Rehnquist. Within days of the end of the term, O’Connor changed her mind. She signaled her switch when she wrote that Roe was “problematic,” rather than “outmoded,” as she had said in an earlier draft. Roe survived. The court’s internal struggle isn’t mentioned in the final opinions.
Homosexual Rights. The court’s ruling in 1986 that the Constitution did not protect homosexual acts almost didn’t happen. A year earlier, only two justices even wanted to hear the case of a Georgia man convicted of sodomy. But the votes kept shifting as each side saw a chance to prevail. Eventually, a waffling Justice Lewis Powell sided with the conservatives. Powell wrote that it could not be a “fundamental right” to engage in sexual conduct “that for centuries has been recognized as deviant.”
Death Penalty. The veneer of tranquillity among the justices disappears every now and then. In a 1991 capital case curtailing the right of condemned inmates to appeal, Marshall dissented for three justices. He was so enraged that he described the majority’s decision as “lawless” in a draft. Justice John Paul Stevens wondered in a memo if that was too strong. “After all, when five members of the Court agree on a proposition,” he deadpanned, “it does become law.” Marshall deleted the word.
The picture of Marshall himself that emerges from the papers only confirms his standing as a grump with charm. “No” was his favorite word-and as a Supreme Court justice, he didn’t have to answer for it to anyone. To a Virginia judge asking him to come to a tribute, Marshall responded: “I did not know Judge Jordan and see no reason why I should travel to Norfolk to see his portrait. " To an author wishing for a photo of him in high school in Baltimore, Marshall suggests instead that he shoot a Marshall statue. While Marshall returned almost all requests for autographs, he wasn’t above asking for one in 1967 from his political patron, LBJ. Even justices, it seems, know that the life of the law is exceptions.
Despite the favorable portrait emerging from the papers, most of the current justices-along with Marshall family and friends-have skewered the Library’s decision to open up the papers right after Marshall’s death. They say he did not want them to be this widely available-the broad language of his bequest notwithstanding-and that the court itself needs to be insulated from inspection. In his contract with the Library, Marshall limited the posthumous use of the papers to “researchers or scholars engaged in serious research.” Rehnquist took the unusual step of threatening James Billington, the librarian of Congress, that his colleagues might be “inclined” to donate their papers elsewhere.
The debate has so mushroomed that Billington’s job could be on the line. It’s a pretty secure position: there have been only 13 in U.S. history. Only the president can dismiss him; Lincoln fired one he suspected was a Southern sympathizer. But last week several influential members of Congress were discussing the termination of any Library appropriations connected with Marshall’s papers.
Bruised feelings aside, the court will survive, and Marshall’s reputation will not be damaged, either. There is irony here. It was Marshall who said for years that he would burn all his papers someday, only relenting after friends talked him out of it. He likely is a victim of the fatal sin all too many lawyers learn in their lifetime–sloppy drafting of a contract, this one with a big library. Or just maybe Marshall, that old fox, knew precisely what he was doing when he did the deal. That is a secret that will always remain locked up tighter than even the high court’s conference room.
