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Justice Marshall's papers stay public


WASHINGTON -- The Library of Congress politely but firmly refused yesterday to take off the public shelves the Supreme Court papers of the late Justice Thurgood Marshall and told the court to look after its secrets itself.

The head of the library, James H. Billington, did not respond in kind to the anger in the court's letter of complaint this week about prompt release of the Marshall papers, a file held in hundreds of boxes and revealing vast amounts of detail about the internal wheeling-and-dealing of the justices over their decisions.

A majority of the court had accused the library of "bad judgment."

Nor did Mr. Billington match the emotion of the complaint by the Marshall family lawyer, William T. Coleman, that disclosure of the papers hurt the family and the court.

Instead, the librarian expressed sympathy, explained why the papers were put out for public review and said the papers would remain available for those doing "serious" research -- including journalists -- because that was "the expressed wishes of one of our great jurists."

To the charge that the release of the papers would breach the secrecy the court needs to do its work, Mr. Billington implied that the court had not done a particularly good job of that on its own, and added: "We cannot serve as the court's watchdog."

Noting that journalists and scholars had gained access to secret Supreme Court documents outside the Library of Congress, the librarian said: "We are surprised to have the Library of Congress called upon to enforce a tradition of confidentiality which the court itself has yet clearly to establish."

Mr. Billington recounted the dealings he and his staff had with Mr. Marshall over deposit and use of his court papers, and noted that the justice had been given a chance to put restrictions on public access to the papers but had not done so.

It was unclear last night whether the hot controversy would now end between the two usually reserved institutions, which are neighbors on Capitol Hill. The court indicated it would have no public comment on Mr. Billington's statement.

Before Mr. Billington made his statement, retired Chief Justice Warren E. Burger got into the controversy, lambasting the library for "an irresponsible and flagrant abuse" of its discretion. Mr. Burger wandered into the court's press room and said no library would get his papers.

There have been hints that Mr. Coleman, representing Mr. Marshall's widow and sons, might seek some legal action against the library, but the attorney did not answer calls to his office last evening.

Scores of journalists, lawyers and scholars have been swarming over the Marshall papers in the library's manuscript section since the Washington Post began describing their contents last Sunday.

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