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The New Constitutional Covenant
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12153 |
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Section : |
MODERN THOUGHT
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| Issue
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3 / 1994 |
6,558 Words |
| Author
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Gerard V. Bradley
Gerard V. Bradley is professor of Law at Notre Dame Law School.
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Thurgood Marshall's papers were made public late last May. From all the fuss, you would think they were stolen from his widow and splashed, along with photos of justices in hula skirts with lampshades for hats, across the pages of the National Enquirer. They were not. Marshall donated them to the Library of Congress, stipulating that after his death they "be made available to the public at the discretion of [the] Library." Marshall died in January 1993. There were no pictures.
There was a portrait, a pretty flattering one. Behind the curtains parted by Marshall we see the justices engaged in earnest, high-toned deliberations, addressing each other respectfully, even solicitously. The Marshall papers unmistakably depict uncorrupted persons of above-average intelligence and firm conviction who care about the common good and are trying to do the right thing. The Court's warts, the worst of which had to do with the papers' donor, are invisible. Reliable sources say that his clerks did all the work while Marshall watched soap operas and perfected his curmudgeon imitation.
William Coleman, Gerald Ford's transportation secretary and Marshall's personal lawyer, nevertheless thought the library's action "shocking and despicable." Chief Justice Rehnquist wrote reproachfully for a "majority of active justices" that they just might take their own papers elsewhere. The Court's previous chief, Warren Burger, got into the act, too, as did some ex-Marshall clerks in a New York Times op-ed piece. They were little less than appalled.
Why the fuss? Critics say that the library dishonored the spirit, if not the letter, of Marshall's donation. That is hardly apparent from the terms of donation, and those present when Marshall spoke to the library say his wishes have been scrupulously respected. To be sure, the justices prize the secrecy of their deliberations. But are we to believe that the unlikely prospect of a justice's spontaneous retirement, immediate death, and quick post-mortem release of his files will undermine some necessary candor among the brethren? If so, God save us from this honorable Court. In any event, the question is accentuated: Why is such secrecy thought so important?
The continuing fuss suggests that the portrait--flattering as it is--is not good enough. The New York Times' Neil Lewis suggests this possibility: Public perception that judicial opinions are objective, even ethereal, is vital to the Court's legitimacy, and the Marshall papers penetrate a mystique about how decisions are reached.
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