Marshall Papers Show O’Connor Delaying Court Work : Law: Justice, a swing vote in sensitive cases, is depicted as agonizing over votes for months. This insight is one of many nuggets in released files.

On Nov. 9, 1987, the Supreme Court was faced with a clear-cut decision. William W. Thompson sat on Oklahoma’s Death Row, awaiting execution for a murder he committed when he was 15 years old.

Could the state put Thompson to death, or is it cruel and unusual punishment to execute someone so young?

The newly released files of the late Justice Thurgood Marshall suggest that the decision was anything but simple for Justice Sandra Day O’Connor, the court’s swing vote in the most sensitive cases ranging from abortion and civil rights to religion and the death penalty. The Marshall papers, which now can be examined in the reading room at the Library of Congress, show that O’Connor often held up the court’s work for months while weighing her vote.

In a Jan. 22, 1988, memo to Justice John Paul Stevens, O’Connor said she was not ready to join his 20-page draft opinion striking down Thompson’s death sentence

“Dear John,

“This is a difficult case for me. I am still not at rest on it and will not make a final decision until I see the dissenting opinion.

“Sincerely, Sandra.”

She would wait until a week before the court adjourned before finally announcing her decision, one that was so limited it forced the court to take up nearly the same issue the next year.

The insight into O’Connor is just one of many nuggets of Supreme Court life found in the Marshall files--173,000 pages of documents said to take up 230 feet of shelf space. They include material from Marshall’s days as an NAACP attorney, U.S. solicitor general, a federal appeals court judge and finally his 24 years on the high court, ending in 1991.

While the files do not appear to offer startling revelations about the justices or the normally secretive high court, they nonetheless shed new light on how hard cases are resolved. Often, it takes many months and many drafts for the justices to find a result that garners the support of at least five of them.

The accumulated memos and legal drafts also reaffirm the view of the court as “nine little law firms,” as ex-Justice Lewis F. Powell once put it. Rather than arguing with each other around the conference table, or by twisting arms in the hallways, the justices work through their disputes by exchanging polite, lawyerly memos.

The papers show that by the 1980s, the aging Marshall did very little writing. In case after case, he simply scrawled in blue crayon across a draft opinion of one of the liberal justices the words “Join” or “Am With WJB,” referring to William J. Brennan.

On occasion, he offered a pointed rebuttal. In 1985 Chief Justice William H. Rehnquist had drafted a dissent in a school prayer case from Alabama, arguing that the Constitution was not intended to require a separation between church and state.

“Unadulterated B.S.,” Marshall scribbled on the draft.

This week, Marshall’s family and Rehnquist voiced anger at the librarian of Congress for releasing the papers so soon after Marshall’s death.

But on Wednesday, Librarian James Billington said the papers will continue to be open to the public. This is in line with the wishes of the late justice, he said.

The files themselves are laden with highly personal notes. They mostly contain multiple drafts of court opinions, broken only by one-sentence memos.

Marshall himself rarely joined in the debates, except when the issue was civil rights for minorities.

His file on the 1978 Bakke case, the first to test the constitutionality of official racial preferences in school admissions, fills nine inch-thick folders. Included is a four-page handwritten statement by Marshall, the first black justice.

“I repeat, for the next to the last time, the decision in this case depends on whether you consider the action of the regents (of the University of California) as ‘admitting’ certain students or as ‘excluding’ certain other students. Toward one end we see ‘complete equality,’ affirmative action to remove the vestiges of slavery by ‘root and branch’. Toward the other end we see ‘quotas,’ the ‘Constitution as color blind,’ etc. Take your choice,” Marshall wrote.

“I wish to address the question of whether Negroes have arrived,” he continued. “We are not all equals. As to this country being a melting pot--either the Negro did not get in the pot or he did not get melted down.”

In July, 1978, after months of exchanging drafts, the justices announced a compromise ruling in the Bakke case that set the standard for every subsequent ruling on affirmative action. The government may not use rigid quotas, but it may take race into account as one factor when enrolling students, hiring employees or awarding contracts.

In recent years, as the Marshall papers make clear, the court’s rulings nearly always turned on O’Connor’s decision, often reached after weeks of deliberation and in separate opinion.

In the Oklahoma death penalty case, Justice Stevens argued that because juveniles are not given the same rights or responsibilities under the law, they should not be given the ultimate punishment.

A day after his draft had been circulated among the justices, Marshall sent back a one-sentence note.

“Dear John,

“Please join me.

“Sincerely,

“T.M.”

That meant Marshall was signing on to Stevens’ opinion. Soon, similar notes arrived from Justices Brennan and Harry A. Blackmun.

A few weeks later, Justice Antonin Scalia circulated a sharply worded dissent arguing that state lawmakers and jurors, not the Supreme Court, must decide who deserves the death penalty.

Rehnquist and Justice Byron R. White sent out one-sentence memos announcing they had joined “Nino” and his dissent. One court seat was vacant then, as Anthony M. Kennedy had not yet been confirmed by the Senate, so the outcome depended on O’Connor. A 4-4 tie would affirm the Oklahoma courts and send Thompson to the executioner.

Finally, on June 23, seven months after the case had been argued, O’Connor sent around the building a brief draft opinion announcing her conclusion

She voted with the liberals to vacate Thompson’s death sentence because Oklahoma’s law did not specifically set a lower limit for capital punishment. But she added that she did not think the Constitution automatically forbade the death penalty for all juveniles.

Because of the narrow wording of her concurring opinion, the decision affected only Thompson, and the justices voted then to take up the constitutionality of capital punishment for a 16-year-old murderer.

A year later, O’Connor split the difference again. She agreed that the Constitution did not absolutely bar the death penalty for a murderer who was as young as 16 or mildly mentally retarded.

But she voted with the liberals to reverse the death penalty because the jurors had not been urged to consider leniency because of special circumstances of the defendant.

While most of Marshall’s files contain exchanges of legal wording, they are not all serious. As good lawyers, the justices carefully put on paper the details of even parties and receptions.