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tv   Remembering Justice Thurgood Marshall  CSPAN  July 7, 2021 10:26am-11:31am EDT

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>> next on american history tv, four prominent figures in american law including supreme court justice elena kagan recall their experiences working as clerks for supreme court justice and civil rights icon thurgood marshall. they discuss marshall's personality, his skill as a storyteller and his impact on their careers. the supreme court historical society hosted this event in the supreme court chamber. it's just over an hour. >> i'm doug ginsburg and since nobody else seems to be here to do it i will introduce our panel for this evening. in this look back at justice thurgood marshall. to my immediate left if you have not guessed it is justice elena
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kagan. justice kagan was with justice marshall what year? >> '87. >> '87. teams like yesterday. >> it is. >> that was after having attended princeton and then oxford and then harvard for law and have served in judge mcva's chambers as a law clerk. all of our panelists this evening clerked for one judge or another on the d.c. circuit as did i, all four of us. >> it's a good court. >> it was a great court. and was in the white house counsel's office and then the clinton administration and then in the policy council as deputy director. couldn't keep a job apparently. taught at the university of chicago law school and after getting tenure there moved on and settled at harvard, not very
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long after that became the dean of harvard law school and then couldn't keep that job, either, and became associate -- solicitor general first and then associate justice of the supreme court. judge paul engelmayer at the far end is a judge in the southern district of new york and has been since 2011. i should have said, elena, you came on the court in 2010. >> uh-huh. >> and paul in 2011 in the southern district. he went to harvard and to harvard for law school as well. clerked for judge walled on the d.c. circuit and then was in the solicitor's office when drew days was solicitor general. and then was in private practice before going on the bench. and professor randall kennedy in the middle to my left who was a rhodes scholar, a graduate at
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the neil law school, clerked for judge scully wright on the d.c. circuit, joined the harvard faculty in 1984 and has been a very productive prolific author of books, i think remarkably when most people of his colleagues are writing law review articles he's writing books. i thought of particular interest randy is a member of not just the american law institute but the american academy of arts and sciences and the american philosophical association. so we have an array of three marshall clerks -- four marshall clerks with myself, i was there as well '74 to '75, four d.c. circuit clerks and all of us like virtually all of our other alumni of justice marshall's chambers i think were very much affected in our careers and in our lives by the experience of
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having been in his chambers and in close contact with him for a year. so we're going to reminisce a little bit, if that's -- if that's okay. i'm not sure there will be more to it than that for you, but i would hope that that is of some interest. and so i'm going to start with you, elena, unless you want to pass. i will have to hear the question first. >> you didn't let people pass in class, did you? >> no, never. >> good. why don't you tell us about how the clerkship affected your career. >> starting with a big one. how it affected my career. you know, i think clerking on this court affects everybody's career who does it. i mean, it's probably more than is justified. it's, you know, something that -- that does. you put it on your resumé and
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all of a sudden doors open, sometimes justifiably so and sometimes not. i think, you know, what's much more important to me is just how the experience of clerking for justice marshall affected who i was and what i thought was important in the world. he was -- you couldn't survive a year in his chambers without realizing that there were -- there were things that you knew nothing about and it was -- it was, you know, an eye-opening experience in many respects other than just learning about the law, and it gave you an appreciation for people who had fought for justice all their lives and the importance of their work, especially his work,
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and it made you think about what you were doing and why you were doing it. not that, you know, one could never hope to have a career that -- that was sowed as much justice seeking as his was, but i think the -- his voice in my head never went away in terms of trying to figure out what i was doing and why. >> so you still hear the call, knuckle head? >> knuckle head was on a bad day, shorty was on a good day. >> knuckle head you had to share with everyone else, shorty was maybe just yours. paul, do you have something on the same question about the arc of your career?
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>> much of what elena said i -- everything she said i agree with. from my perspective if you came to the clerkship thinking about doing public service and you spent a year with the greatest legal public servant of the 20th century it could only reinforce that impulse and that certainly was the case for me in all the ways that elena described. midway through the clerkship i spoke to him about applying to become an assistant u.s. attorney not knowing how he would react to that and was very delighted that he was enthusiastic. in fact, it turned out that he was quite a big fan of the department of justice which he had served as sg and as it happened my year three of the four of us became assistant u.s. attorneys right out of the clerkship and he was very encouraging from that. from my point of view in addition to what elena said, hearing his stories about trial courts lit a fire under me to be a trial lawyer and to engage with the craft of being in a courtroom. it reminded me of how important
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it was to know the facts and to know the record and one of the lessons you learned from justice marshall was that as important as the law was, facts are probably in most cases much more important and listening to the way he recounted the cases in his career and how decisive evidence and witnesses had been really taught you as a lawyer that the craft involved getting one with the evidence. as a judge i think about him almost every day and i think about him in this context. i think about the defendants in my courtroom, i think about the family members who were there for sentencing or pleas in particular and that this may be the only day for these people in which they are ever in a courtroom. one of the things you learned from justice marshall is you want to make sure there is a decency and honor and dignity that attends the way in which a judge comports himself in court so that for the people who are in a federal court for only one day in their life they leave
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feeling en noebld by the experience and treated fairly. that is something i've learned from him and have taken with him. i will end by saying i have his picture up in my reception area in my chambers, it's a picture of him on the steps of the supreme court on may 17, 1954. i walk in there every day and i look at it and it reminds me that we are in the justice business. >> i have a litho graph of him as well in my office, something that i'm very pleased to have that i acquired not long after leaving chambers. randy? >> well, it was a great pleasure working for justice marshall and it's made a big impact working for him as made a big impact on my career. i didn't know at the time that i was going to be a legal academic, but i turned out to be a legal academic and one of the subjects that i write about is
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race relations law and what could have been better preparation than working for justice marshall known before he got on the bench as mr. civil rights. over the course of the year one of the great benefits of working for him was he knew it seemed everyone he had many stories and he was very generous with his time and very generous with his recollections. i would just ask him lots of questions and it turns out that much of what he shared with me became of use in my professional life as an academic and is still very much of use. >> i see we've been joined by mrs. marshall. sissy, welcome. elena, i will come back to you, if i may. tell us about a memorable opinion by the justice.
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and whether you worked on it. >> i will give you two, actually, and one will be not surprising and one may be more surprising to folks, and both were the year that i clerked for justice marshall. we used to call him judge, we used to call him t.m. we actually never called him justice marshall. so here is the one that maybe won't be so surprising was -- this was one that really brought on the knuckle head appalachian. it was a case called kottermoss and it was about a school girl, a white, you know, ten-year-old, 12-year-old girl in rural kansas, i believe it was and she lived some miles away, more than 15 miles away from the nearest school and there was a bus
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service but they made you pay and they wouldn't give a waiver for -- even for indigent students so the result was that this girl didn't get to school. and there was a challenge brought to the fee schedule, you know, to the idea of a state charging fees for the school bus which was absolutely necessary for her to get to school and was a constitutional challenge brought under the equal protection clause and we walked into his office and i laid out, you know, the arguments and i said to him, you know, judge, i just think that it's going to be hard for -- i think her name was serita cottermoss to win. he looked at me and said why? i said, well, you know, indulgency is not a suspect class and education is not a fundamental right and so that means rational basis applies and the state has a rational basis
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here. and he looked at me as though i must have lost my mind. and, you know, because, you know, his basic idea of what he was there to do was sort of to ensure that people like serita cottermoss got to school every morning and as long as he was going to be on this court he was going to vote to make that happen. we dissented in that case, the justice dissented, it was, i think, a 6-3 or a 7-2 opinion. most of the court decided the case just as i basically laid it out to him and justice marshall wrote a dissent and the reason i say i was called knuckle head quite a lot with this case is because of all the cases that i worked on it was the one he was most passionate about, you know, the idea of i think what -- what
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moved him more than anything was trying to get rid of these entrenched inequalities in american life, this one didn't involve race but it was all the same to him and i would bring in a draft of a dissent and he would say stronger and i would bring in another and he would say stronger and i would bring -- and it went on like that for quite a while until he felt like i got the right level of passion and disgust in this dissenting opinion and, you know, obviously he communicated some of his own. you know, he took out his blue pencil and marked it up quite a lot. so that was one, and that's the one that i think won't surprise you, but the one that i think will surprise you was also that term and it was a place -- it was a case called torres. hispanic employees had brought a
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discrimination suit and they had lost and they filed an appeal. the secretary to the lawyer handling the appeal left out one of their names on the notice of appeal that went up to the court and the question was whether leaving out that name was going to mean that the court had no jurisdiction to hear the appeal of this one employee of the group. the case came to us and all the clerks thought this was an easy case, the answer should be it's just a secretarial mishap and you're going to deprive this man of his claim? what a crazy thing. and, in fact, justice brennan thought it was that crazy and justice brennan dissented from that case, but justice marshall ended up writing the opinion for the court in that case, saying that, yes, in fact, the court did -- that this -- leaving out the name made all the difference
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and the court didn't have jurisdiction to take the appeal. and this is what he said to us. he said -- he said i spent my whole life litigating cases and you can't expect anybody to bend the rules for you. the only thing you can expect is that they apply the rule straight, and indeed -- and indeed people -- you know, people who litigated like i litigated, their salvation was in the rules. i mean, if he had a chance for success it was because of the rules and because people decided to take those rules seriously. so that the rule of law and playing by the rules was to him one of the most important principles in the justice system and sometimes it worked against you and they put in the wrong name, but in the end especially
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for people who were disliked and who were disadvantaged, they needed the rules. so you better make sure that you've created a system where the rules are there. i don't think he convinced a single one of us honestly, but -- but it was -- it was a powerful lesson for me, actually, as much or more so as listening to him talk about serita cottermoss and the bus and the importance of education and the importance of eradicating inequality. this, too, was as powerful or more powerful a lesson about the importance of rules and of law in our society and even when sometimes it doesn't cut your way. >> may i comment along those lines? >> sure. the one decision that he was most passionate about our term was richmond versus crossen
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which was the case in which the court adopted strict scrutiny for racial classifications for affirmative action racial classifications this involved municipal contracting in richmond, virginia. he was very, as you can imagine, distressed by the outcome there. one of the things that was interesting to me was not just his fundamental point that affirmative action is different from out and out official racism, but his focus, again, on the facts. he said to me, as the clerk assigned to assist him on the case, i want to make sure in the very first part of this decision, the very first paragraph that we make the point that this is the capital of the confederacy and i want to make the point that there's something ironic here about historically the capital of confederacy bending over backwards to do something progressive about race and then getting spanked down. that was a refrain that we saw throughout the year. he was a deeply knowledgeable historian and wanted to make sure that what came out of his chambers was rich in history and rich in social context and not
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arid. that's one of the distinct memories i have. >> my favorite case -- my favorite opinion from the justice is a concurring opinion, it was a concurring opinion in a case called batsen versus kentucky and in batsen versus kentucky the supreme court of the united states reversed an earlier opinion swain versus alabama. in swain versus alabama the court said that preemptory challenges, a prosecutor's use of preemptory challenges was immune from question. in the case the defense attorneys had wanted to challenge the prosecutor's use of preemptory challenges saying that they had been based on race and the court said, well, preemptory challenges are just immune from question. if a prosecutor is using a
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preemptory challenges for trial-related reasons, any reason whatsoever, that's okay. well, two things about batsen versus kentucky. first of all, batsen versus kentucky was triggered by the justices use of dissents from -- so typically people don't pay any attention to dissents from -- but the justice issued dissent after dissent after dissent basically to alert the bar that at least there were a couple of justices, him in particular, that was interested in the issue and secondly i think to educate and try to persuade his colleagues. over the course of a year he succeeded. he succeeded in persuading other justices to come along with him and he triggered the -- he trig
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deferred a reassessment of swain versus alabama. the court agreed to reverse swain versus alabama but then the justice wasn't satisfied with that and he wrote a concurring opinion in which he said i agree with what the court is doing, but the court is not going far enough. it should get rid of preemptory challenges all together. it was that pushing of the envelope that brings a smile to my face and makes me think of that's the justice thurgood marshall that i revere. since you mentioned two sorts of opinions i will mention one other. it's not just one opinion, it's a series. so justice marshall -- justice marshall came to the conclusion that capital punishment is in
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all circumstances in violation of constitutional standards so he dissented in all capital punishment cases in which somebody was sentenced to death. that stand, too, is a stand that makes me salute him. >> let me ask you to elaborate about that because justice marshall and justice brennan reiterated that dissent, just as you said, in every case that came along. adds opposed to -- an alternative view that once something is settled and you have dissented or reiterated the dissent once that that's it. was this -- do you think this was -- was this because it was justice marshall or because it was capital punishment or because it was a philosophical difference about jurisprudence. >> i think it was largely because it was capital punishment. justice marshall was such an
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unusual person, he had such a broad, long, varied career. he had represented people who faced capital punishment and indeed he had represented people who were executed though they ought not to have been executed. he is a person who represented people who were put to death, though n fact, they were factually innocent. i think that that had something to do with the ferv ensy, the passion with which he saw this particular issue. there were many issues -- there were several issues about which he was deeply impassioned but none more so than the question of the government taking someone's life. >> doug, can i jump in on that? >> please. >> i think it also reflects a deeper view about stare decisis that he had. after all, he was the lawyer who got plessy reversed in brown and i think he would say to us this
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is a living constitution and when it matters we ought to not feel impeded from reassessing. if you look at the speech he gave on the bicentennial of the constitution he says exactly that in that the glory of the constitution is its amend ability, that it was refreshed in 1868, that it took too long a time but that eventually the court got it right. and so absolutely we ought to not felix peaded from reassessing. if you look at the speech he gave on the bicentennial of the constitution and the glory of the constitution is that it was refreshed in 1868. that it took -- it took too long of a time but that eventually the court got it right. and so absolutely capital punishment based on his own personal experience as a criminal defense lawyer was something that he cared deeply about but a philosophical view not to be locked into what he regards as a wrong decision. >> i'm not sure everyone is aware that the justice spent by far the better part of his career trying criminal cases. defending rape and murder
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charges. time after time in very unsafe venues for him. >> i remember once he said to us, he said, well, when a jury brought back a sentence of life imprisonment, that is when he absolutely knew that the guy was innocent. [ laughter ] >> yeah. well he told a lot of stories. from that period and others in his life. and i'm not sure whether this is true when you were clerking for him but his practice when i was there with bill bryceon and karen hasty williams was to come back from lunch, come into the clerk's bull pen, the three of us in one room, sit down in a -- in a leather nogahide easy chair
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and start talking for 30 or 45 minutes virtually everyday. and telling stories and there was some reputation over the course of the year, bu he had a huge repertoire. it wasn't a lot. and those stories were unforgettable. was he doing that when you were there. >> he did. he didn't so many come into the clerk's office but we would go into his office when we would talk about cases and the way it typically worked is we would talk about what was whatever on the court schedule, many more, about 140. >> 60 when i was there. >> and we would talk about the cases an then at some point we would be finished and he would segue into what was sort of story time and in justice marshall chambers. it was the most unforgettable experience.
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my one regret of the year was that not one of us was smart enough to write them all down. because i'm sure i have forgotten 95% of them. and i'll tell you, doug, i don't think he ever repeated one, or at least -- >> it was remarkable, how many stories he had and how he remembered which he had been there before. but a lot of them i couldn't begin to capture a lot of it. he was really the greatest storyteller i've ever come across. and it was a real kind of make you laugh, make you weep, because a lot of the stories he told were pretty rough. pretty hard. and they were stories about his boyhood, they were stories about what it had been like to crisscross the jim crow south as a trial lawyer. often fearing physical danger
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from mobs, from the police. i mean, they were terrible stories. a lot of them. but he also was a great comic storyteller. and a great comic generally. he was so darned funny in his facial expressions and his intonations and sometimes you were laughing when you thought what am i laughing about. this is a horrible story. but it was an unforgettable experience, both the content of the stories he had to tell and just listening to a master storyteller tell them. >> i'll elaborate on that. of all of the stories that he told, which spans brown and the legal theory and strategizing that got there, the stuff that sticks in my mind is the physical courage of being a criminal defense attorney in
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mississippi, alabama, western florida. and the physical risk he took. he told a story about almost getting lynched once himself. he told a story about clients who were lynched. he told of arriving at bus or train stations and having to be tucked into the backseat of a car so he could be driven to a supporter's home, sight unseen or moved once or twice in the middle of the night just to stay safe and all the while telling jokes about this. one time he said -- there is an easy way to tell if a confession has been coerced, how the question how big was the cop? and then another time he tells the story about joking with another member of his legal team about who was going to sleep nearest the window in case a bomb got thrown in. and he's making this funny. and as elena said, horrifying stories but it was part of way he drew you in and drew out
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the stories, but if you have not read "devil in the grove" and that is probably the best single opportunity to capture some of the stories in a 200-page write-up and to have these "to kill a mockingbird" moments in the south in the early '40s and '50s. >> the story that i remember the most is a story about his experience in tennessee after world war ii. there was black veterans defending themselves, resorted to arms, they were charged with various crimes. he went and defended them. got most of them off. the local police got really angry with him. he's leaving the courthouse. he's with another lawyer by the
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name of zee alexander lubby and so justice marshall is driving and the police, local police, pull him over. and hustle him into their car. and the police tells zee alexander lubby to stop, stop following the police but zee alexander lubby just follows and follows and according to justice marshall he thought he was a goner for sure and that the police would turn him over to the ku klux klan and then they got cold feet law alexander lubby was following. so then they go back to town and they charge him -- they charged justice marshall with driving under the influence. and they go to a local magistrate and the local magistrate said well why are you bringing this man here and the police say, well this man was driving under the influence and the magistrate said well i could
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tell whether or not whether this man is driving under the influence and he tells justice marshall, breathe in my face. and so js -- justice marshall doesn't flinch. and he said this man has not touched a drop of whiskey. release him. justice marshall gets in the car, drives off, gets where he's going. calls the naacp and said, you know what, i had not touched any whiskey before, but now i'm about to get drunk. [ laughter ] again, it is a horrible story. it's also a true story. there is a very nice book about this particular -- this particular event. but he always would punctuate it with his own brand of humor.
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>> i'll contribute a couple. and the stories, as you say, some of them were harsh, hard. but not in the language, necessarily. or anything like that. or even in the events. but one was in i think it was a rape trial in florida, black defendant, white complainant. and the jury went to deliberate and the jury went to deliberate and the prosecutor came over to justice marshall and said, see the bailiff over there lighting the cigar. yeah, i see him. what about him? i bet you $5 that the jury comes in within two minutes of the time that he finishes that
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cigar. what does that have to do with how long he has to smoke the cigar. well, the jurymen have been sitting there all day, and i bet they would like to have a cigar, too. that is the kind of story. that really stays with you, too. the other one was about -- i think it is in one of the books, it might be in laurence fishburn's play. i'm not sure. he came out of the courthouse i think in texas, about an hour's drive from dallas where he was staying. and so it was -- pardon me, he was driving there in the morning, being driven there and picked up by highway patrol somewhere along the way. and escorted to the courthouse and when he came out the end of the day that there was also a police car there and followed him to someplace half way back to dallas and then dropped off. and when this happened the second day and he got to the courthouse, he went back to talk
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to the driver of the police car. said, well what is going on? i mean, describe just what i just described. and the sheriff's deputy said, sheriff said you're not to get killed in this country. so -- what was your first impression when you met the justice? >> well, my first conversation with the justice came before i met him. it was -- at that time he was -- he picked clerks without interviewing them. he had some former clerks who did his clerkship selection. so i had been through the process and he had decided to make me a job offer. and he called me. and it was the summer after i graduated from law school. and he called me and i remember the call actually came into the
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law review office and they had to run and find me and get back and i came back and i had to find a phone and i finally got him on the phone, and he said, so you want a job? and i said, i'd love a job. and he said, what's that, you already have a job? and i was like, oh, my gosh, he didn't hear me. no, no, i just really said that i would love a job and i really want this job. and i want this job. and i don't have a job. and i don't know, if you already have a job. and this went on three or four times before it was like i figured it out and he took pity on me and i'm not sure which happened first. but the only other thing i
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remember about that conversation, before he hung up the phone, was he said well i hope you like writing dissents. and we did write our share of dissents that year. >> lest you feel too special. i was in the office when he played that on another. [ laughter ] so what about your first impression, paul or randall? >> similar phone call without the you already have a job. but he said to me, you still want the job? and i said yes. and he said. get ready to write dissents and he got off the phone and i was a summary law associate studying for the bar and this all happened in about 35 seconds and then there was a quality of somebody playing a prank on me and i spent the next hour trying to figure out how to confirm
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that justice thurgood marshall just offered you a job. >> had a similar telephone call. i remember the first time i met justice marshall face-to-face. and i was very nervous about it. very nervous. because the reason i was -- it was a big deal in any event. you're meeting a justice. a person you're going to work for, but it was even bigger than that for me, because i had heard about thurgood marshall all of my life. i had heard about thurgood marshall all of my life, because my father in columbia, south carolina, had gone to see thurgood marshall argue a case "rice versus elmore." one of the last of the white primary cases.
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and throughout my childhood, i heard my father talk about the importance of that case for him. now, my dad didn't really know what the legal issue, the big legal -- it was a state action issue. but he didn't pay any attention to that. the thing that my father talked about over and over and over again was that the judges in the courtroom called thurgood marshall mr. marshall. and the reason why that was so significant is that because of jim crow etiquette, black men were not referred to as mister. if you were a black physician, you might be called doctor so and so if you were a black minister you would be called reverend so and so but black men did not get the honor of mister. and it was a sign of how distinguished thurgood marshall was that the judges and the
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other lawyers called him mr. marshall. i heard about that all the time growing up. and so with that backdrop, of course, it was a tremendous thrill. >> was it part of why you became a lawyer? >> in part, i'm sure. my father just -- again, it was just -- i'm sure it influenced my brother. i have an older brother who is a lawyer. but we heard about -- we heard about that argument a hundred times. >> i don't know if it is one of the books but there is a story about the justice needed when he was practicing in his early 50s and needed a writ and needed to see the chief justice and the chief justice was not to be found.
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but he knocked on a door in the hotel, it was a hotel in connecticut, where the big conventions often are. k street in connecticut. any way, big hotel there. >> mayflower. >> mayflower. someone had given him a tip and there is justice playing poker with president truman and two other men. i don't know who they were. he went over to chief justice and opened up this paper, must have had an affidavit in it because the chief justice looked up and said, mr. marshall, is all this true? and he said, yes, sir. sign the paper. left. never noticed that it was the president in the room. never said anything to him. if he noticed, he didn't say anything to him. >> those were the days. >> learned about that afterwards.
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>> yeah. >> a little bit more informal the way we did business back then. >> i remember him telling that story with this quote, is that the chief justice saying if you've got the guts to open that door, i've got the guts to sign it. >> much better. thank you. >> any first impression when you finally met him, randy? >> um, he was -- he was a large man and very imposing. i think nowadays sometimes the views you get as sort of an e vuncular, welcoming, but he
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was a tough boss. and intimidating. and he definitely laid down how he wanted things done, and you knew how he wanted things done and you paid attention. so i mean from the very -- from the get-go with me, in any event, i was very attentive to him. and over time, i suppose, the intimidation went away. but i always found him imposing. >> i think it was the combination of his physical stature, manner and just knowing of him as a historical figure, essentially. i think it was so intimidating. or at least overwhelming at first. >> go ahead. >> no, much the same. as intimidating as he was, i think back also on how
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accessible he was in the sense that you really understood as his clerk what he was thinking about cases and the historical events he was recounting. he certainly didn't hide the ball. and he in the roughest language and most explicit language would tell you who the heroes and villains were and the advocacy we had just seen. he would share views about colleagues, he read us about a letter he was to read to the chief justice on the occasion of the annual holiday party which we read and i have a copy of this to clerks, dear chief, as usual i will not attend the annual christmas party. i still believe in the separation of church and state. he was letting us into the tent. so as opposing as he was, i appreciate that he gave us
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access to his take on just about everything. >> and he was -- he cared a lot about what we thought about things. he listened to us, he asked us questions. there was a real dialogue between the clerks and the justice. but gosh, did he know who was boss. so sometimes you would get this treatment of he would point over to his wall where there was a commission and he would say, now what is over there. you could go take a look at that. and whose name is on that commission? and then he had this other -- sometimes people would say, well you have to do x, y or z. like you have to -- in that case i told you before, you have to vote for mr. torres, and he would say there are only two things that i have to do -- stay black and die. he didn't repeat stories, but that expression, he repeated a lot.
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>> he had another, he had another one that went along with that. i remember once arguing with him about a case and he said, thank you very much. and sort of put his hand up. and i said well, let me try again. and i did this a couple of times. and finally i said, you know, justice marshall, let me just say, two years ago you said this. and if you go the way that you want to go, that you're proposing to go, it will be -- it will be just completely contradicting what you said two years ago. and he looked at me and he said, do i have to be a damn fool all my life. [ laughter ] >> before i forget about the
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stories, as many as there were, i never heard one in which he was the hero. >> yes, you had to look it up afterwards. >> and so he was not self-aggrandizing in any way. but he wanted to very much pass on to us, and ultimately well beyond us a real sense of what it was like for him. many years later, he did sit down with juan williams for a long time and tell these stories and talk about a lot of things that he hadn't talked about for publication before. i thought that the only thing, the only jarring note in the whole book was the subtitle of the book was "thurgood marshall american revolutionary." revolutionaries don't follow the rules and they are out in the street, and he had no affection
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for the people out on the streets, none. >> i am sure that randy has thoughts on this, the relationship with the civil rights movement, generally. >> well, it was a complex one. on the one hand he was mr. civil rights and over a long period of time through just extraordinary work, amazing diligence, amazing persistence along with extraordinarily skill created the groundwork for the civil rights revolution. at the same time he was, and he viewed the world very much through a lawyers' lenses, and his way of doing things was to attack through the courts what you didn't like, have those things invalidated and after they were invalidated, then move. he was not a fan of direct
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action. and there was tension, i think that it is, you know, documented. there was real tension between him and the students who were, you know, the people who engaged in sit-ins, and real tension between him and martin luther king jr. there was tension, and he respected them and they with good reason respected him. and to move the world in the way that the champions of the civil rights movement moved the world, you needed all sorts of people. you needed division of labor and you needed people who saw in different ways and pusheded in different ways, but, yeah, you needed a complex relationship with some of the other members
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of the, you know, champions of racial justice. >> the division of labor reminds me of one among the clerks in my years, and did you anything like that? >> what is that? >> a division of the labor among the clerks. >> what was it? >> bill bryson took all of the division of labor case, and karen took all of the civil rights and anything related cases, and i got what was left. [ laughter ] and so that was international case and securities and labor and there was, i mean, there was never a moment in which, and never a matter on which we had any disagreement or had to work out, you know, exactly what he wanted to stay, because we were completely on the same wavelength, and he was, i mean, you know, in that respect a conservative person.
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he was not trying to upset the securities laws. you know, or make waves just to make waves. >> the way he did it with us, he made it very clear early on that we were to be looking over one another's shoulders and so he tells us early on, if i am mad with one of you, i am mad with all of you. so, we would look over one another's work -- >> we did that. >> -- and we were particularly conscious of his, and he was completely intolerant of lateness. you could not be late about anything. one minute was too late. and so, you know, we sort of had, you know, a collective punishment. i would also say one thing that i remember about the year that had to do also as my remarks about capital punishment.
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on the night of an execution, there would always be one clerk who had to stick around for anything late breaking. and some of the time when everything had been done, the person who had to stick around had to call up the justice at his home. and on those occasion, and i did it a bunch, because my fellow clerks all three of the other clerks were married, and i was d to stick around, because nobody was looking for me, but on those evenings when i would call the house, i would pray that mrs. marshall, and i would be praying that mrs. marshall would answer, because it made a big difference. and the big difference it made was this.
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if mrs. marshall answered the phone, the justice would come on and he would be very civil. he'd be very nice, and very polite and very civil. if she did not answer the phone, and he got to him first, it could be a very tough conversation. >> i remember about the capital cases that his charge to us was not merely to execute the formal dissent based on the categorical, but he would say to comb each of the cases to see if there is some specific ground to see if this status reversed and it was not a doctrinal for him, but he wanted it reversed, and have you dug into this, and is there something about this case we can save. >> this one of my most vivid memories, and for many reasons
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that capital punishment were playing a more significant role in the court more than today, and firstoff, there were more execution, and so a week, that there would be usually several executions a week at that time. there were fewer procedural bars, and so a lot of what we are doing now, a few people come up on death row, and there is no way to hear the merits of the claims, because since that time congress has put into place a whole lot of rules that mean that many, many, many more claims are procedurally barred than then, and the third thing is that the death penalty law at that time was much less well developed, so you didn't have, and a lot more open spaces in terms of what was allow and what was not allowed, and so there was quite a lot of the
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executions, where there was a very serious issue that remained open and that you could get to. randy talked about dissents from denial in one area of law, but i remember there wasn't just the typical, like, thing that he and justice brennan do about how did it go again? just the one-liner, and i forget how it went -- >> consistent with my view. >> but we spent -- we drafted so many dissents from denial in death penalty cases that year. i'd be surprised if we didn't do 25 of them, 30 of them in a year. >> i must have been there or i was completely oblivious or there in the happy interim when there were no cases in '74 or '75. does that sound about right? >> yeah.
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>> okay. well, thank goodness. chilton, where are you? how much time do we have, if any? >> time for one more question -- >> that is fine. but instead of a question, why don't you tell us what your favorite recollection of the year and not just in chambers, but of the year that you spent here. >> somebody else can start. >> this is outside of the chambers memory. holiday time late one day, he told us that he was going to take us out to lunch the following day at a seafood restaurant, and we get into a car, and we go to a seafood restaurant, and he is leading the way, and as thurgood marshall walked into the packed dining room, you could see people begin to realize who
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walked in. slowly one by one, and then everybody they just got up and stood for him, and stood for him for maybe 60 seconds. and you know, he nodded and everyone sat down, but it is a moment that allowd you the see him the way that the world saw him, and reminded you that this is not the ordinary supreme court justice, but cleshing for -- but clerking for a living legend. and elevator operators and others, but then to puts a side what we are talking about in the conference room and story time and forget about the individual cases, but this is the magnitude of the man, and what he has meant to our country. and i think that we all saw it again after he passed away and the clerks had the enormous honor of serving as the honor guard and we all took the shift in the middle of tonight even as people were streaming through and there were people overtly
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emotional and bringing in copies of "brown v. board of ed" and leaving it there, and the enormous space that he had occupied in our 20th century. so my story really is just having that window of an opportunity to look at him through other's eyes. >> i guess that i would echo that and say that probably the most enduring snapshot that i have of that year is on the very last day that i worked for him. because on that day i mentioned earlier of my father. my father came to the court that day. and the justice was very nice to my dad. my dad talked about "rice versus elmore" and seeing him.
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they had a very nice talk and these two people whom i revere the memory of that is a deep memory with me. >> i also remember when my parents came to the court, and he was nicer to me that day than he was before or since, and it was the only day that i knew that he liked me. [ laughter ] >> well, thank you, all, for being here for this hour and the tribute to the justice and i hope many more in the future for others to carry this forward for as long as we can. >> well, it was a privilege for us. [ applause ] my name is jim o'hara, and
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i'm a member of the board and the executive committee of the supreme court historical society, and the society is deeply honored to be the host of tonight's national heritage lecture. a few observations before the evening is over. first, justice kagan, judge ginsberg, judge englemeyer and i thank you for your stories about justice thurgood. this is a warm evening, and i am honored to have been a part of it. the national heritage lecture is sponsored each year by the supreme court historical society, the white house historical society and the united states capital historical society. since 1991 when justice anthony kennedy delivered a rousing talk
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on president roosevelt's 1937 court packing plan, the three organizations have rotated hosting duties each year. this evening's national heritage lecture is of course a celebration of justice thurgood marshall's 50 years after his ascention to the supreme court. the society and all of us here are deeply honored to be joined this evening by his wife, cecilia marshall, his sons, thurgood marshall jr. and john marshall, his daughter in law, gene marshall, and his grandson edward patrick marshall. thank you so much for being here and honoring us with your presence.
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i thank all of you for coming, and please join us in the receptions in the east and west conference room which are directly to the right as you are leaving the courtroom tonight. tonight, we will be serving two recipes from justice and mrs. marshall that are featured in the society's most recent publication "table for two." we are serving justice marshall's maryland crab soup, and mrs. marshall's mango bread. copies of "tables for nine" are available at the society's gift shop along with many other books and many other gifts. the giftshop is on the ground floor of the court, and it will
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remain open throughout the reception tonight. ladies and gentlemen, the 2018 national heritage lecture is now adjourned. [ applause ] 60 years ago on april 17th, 1961, a force of more than 4,461 cuban exiles launch and invasion of the bay of pigs on the southern coast of cuba called brigade 7506, it was the overthrow of leader fidel castro who had taken over. the invasion disintegrated in a matter of days with 118 kill and over 1,100 captured. it cast a pal over john f.
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kennedy's three-month inauguration, and cast a showdown with the cuban administration known as the cuban missile crisis. tonight, we will take a look back at the failed invasion and the consequences. ♪♪ next, on lectures in history, getty


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