Associate Justice Thurgood Marshall has gone public with his grievances against the Supreme Court in a speech accusing his colleagues of giving "cavalier treatment" to some cases by issuing hasty summary opinions.
He is the fourth justice in the past month to speak out publicly about the Supreme Court's problems. The justices ordinarily confine their criticisms to formal published opinions and dissents.
Marshall's speech, delivered Thursday to the U.S. 2nd Circuit Judicial Conference and released yesterday by his office, attacked the increasingly common court practice of hurriedly issuing major opinions, unsigned and without the benefit of full oral or written arguments by the parties.
The most highly publicized of these per curiam opinions -- generally drafted and issued by conservative justices -- recently upheld a 40-year prison term given to a Virginia man for possession of nine ounces of marijuana.
The court also ruled summarily in 1979 when it upheld the government's punishment of ex-CIA agent Frank Snepp for writing the book "Decent Interval" in violation of an agency secrecy oath.
Marshall said this "cursory treatment" creates a "potential for error and confusion," gives "short shrift" to important issues and is being used in a biased fashion to benefit government officials.
"In a disproportionate number of cases," the liberal justice said, "the court has employed the device to aid prosecutors, wardens and school board officials. Last term, for example, the court issued 16 per curiam opinions summarily reversing lower courts. Of these," he said, "13 involved prosecutors, wardens or school board officials. In all but one of these cases, the state prevailed.
" . . . I am disturbed by the all-too-often cavalier treatment of the parties involved in such cases," Marshall said.
Other justices and critics have blamed the increasing use of the time-saving summary opinions on the growing caseload of the court.
Marshall suggested that if they continue, the court should at least notify the parties and allow them to file briefs.
This opportunity "is the least we should demand before a decision is rendered by the court of last resort."
The debate over summary opinions has been going on for three years. Until now, it has taken place in dissents rather than speeches.