Posthumous Access Debated in Congress: Senate Subcommittee Hears Testimony Following the Recent Publication of Excerpts from the Papers of the Late Supreme Court Justice Thurgood Marshall

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WHEN THE WASHINGTON Post ran a series of articles this spring based on the papers of the late U.S. Supreme Court Justice Thurgood Marshall, it created quite a stir.

The controversy, however, seemed to focus less on the information in the articles -- which documented the seldom--seen inner workings of the Court -- than on when or whether the papers should have been released.

Some argued that the papers should have remained closed until long after Justice Marshall's death -- certainly until justices and cases mentioned were no longer involved with the Court -- and, even then, access should only have been given to "serious researchers," not mere journalists.

The librarian of Congress, however, recently told a U.S. Senate subcommittee hearing that when Justice Marshall bequeathed his papers to the library in October 1991, he stipulated that the papers be made available to the public after his death with no restrictions.

Justice Marshall died Jan. 24, 1993, and, while the first researcher accessed the papers Feb. 2, the Post did not begin its research until May 5, according to James H. Billington, librarian of Congress.

"It is the donor who decides when the collection is to be made accessible and on what conditions," Billington testified, noting that Justice Marshall controlled access to the papers during his lifetime but made the collection "available without restriction" after he died.

In fact, Billington added, Justice Marshall had the opportunity to amend that procedure but did not. Each donor sets the parameters for access to his or her papers.

"My own view as a historian is that judicial papers should be preserved in as complete a fashion as possible," Billington stated. "These collections help us understand the critical role the Court has played in our national life, but they also underscore the characteristically American openness that members of the Court have permitted in the examination of the judicial process."

Billington further urged the Senate Subcommittee on Regulation and Government Information "to consider information in electronic forms and formats."

"Court opinions are now being electronically disseminated across the nation", he testified. "The hard memory disks in the personal computers of Supreme Court justices and their staffs contain information of historical value equal to that of the much-publicized electronic documentation being created by White House staff."

As with this case, archivists often are caught in the middle of these controversies, even though they are acting only at the behest of the donor.

Anne Kenney, president of the Society of American Archivists, explained to the subcommittee that the Library of Congress is currently in an "archivist's nightmare."

While "archivists embrace a position that supports making historical papers accessible with all due speed", they also balance that with the need "to protect and honor the interests of donors, as well as those of their families and third parties that may be adversely affected by the contents of such collections," she stated.

Kenney believes it "would be a grave disservice to Justice Marshall, the Library of Congress and the entire archival profession for the librarian [of Congress] to ignore the will of the donor and reclose the papers or restrict access to them ....

"The problem with the Marshall agreement isn't so much one of language or intent, but of timing: had Justice Marshall died 10 or 20 years from now, these issues would probably be moot," Kenney noted.

While there was mixed opinion about whether Congress should -- or constitutionally could -- mandate regulations governing justices' papers, some who commented were staunchly against it.

Although neither he nor his associates were able to appear, U.S. Supreme Court Chief Justice William H. Rehnquist sent a letter to subcommittee chairman Sen. …