tv Justice Thurgood Marshalls Legacy CSPAN August 9, 2017 9:07am-11:11am EDT
heritage. whether they are caucasian you better understand the story when you're standing where they actually happen. it is something you can feel the history r histo history reasonating. looking ahead to tonight we look into mapp versus ohio. american history tv and our original series landmark cases begins every night this week at 8:00 p.m. eastern. sunday night. >> when you look at every major
civil interaction that has risen up in the united states when black people have abandoned peaceful protests and taken it to the streets in newark, in fergus ferguson, in los angeles it is always because of something the police have done. >> george down professor paul butler takes a look at the u.s. criminal justice system and the impact on african american men. >> when we look at who ought to be afraid of black men, the number one victim is other black men. the main person she ought to be concerned about is her intimate partner or her husband. statistically that's the person that is most likely to cause her harm.
former law clerks to marshal his legacy. panelists including supreme court justice remember their time working for the first african american member of the court and discuss his opinions on landmark cases. this event took place at the u.s. second circuit court of appeals in new york city. today is a very special day. some 650 of us are here in this unprecedented gathering in four courtrooms of the thurgood marshal courthouse to celebrate an american hero, thurgood marshal.
he served on the second circuit. we welcome our cspan audience to our proceedings as well. our gathering is at the intersection of two initiatives which have engaged the courts of the second circuit the last two years. initiatives which i had the privilege of proposing which have taken life because of the creative and dedicated work of remarkable colleagues of the bench bar and our court staff. as we take stock of our past to better understand how our work has evolved. so as to better meet the challenges of the present and the future.
the second initiative, justice for all. a project which through a wide range of civic activities seeks to bring courts and communities closer together to promote public understanding of the courts and to help courts better understand the communities we serve. early in the new year we will be going live with our civic education web side which you'll be able to find and we incite you to explore it. thurgood marshal's life is very much a part of both of these initiatives. as to our court's history john f. kennedy appointed him as a circuit judge where he sat in
observed, everyone who enters this building will see photographs of various aspects of marshal's incredible career. he worked tire as the executive director of the naacp legal and education defense fund. you will be able to see the videos and hear his voice arguing in the supreme court. you'll have a sense of the impact on the worlds which he
interacted. moreover, students of all ages will be able to the legacy when this spring we inaugurate on the fifth floor a state of the art learning center, an initiative and you'll be able to see in permanent ways the life of thurgood marshal. today we are graced by representatives of the marshal family. justice marshal's grandson and where great thanks we have here with us as well an outstanding group of the marshal you additional family.
without further delay aturn the proceedings over to judge wesley who is overseeing this anniversary, judge wesley. [ applause ] >> three seats left. i have to say i'm a little nervous standing with such a distinguished panel. i'm glad i haven't been a lawyer for 30 years argues for 30 years. i don't know how i would fair with that group up there. a bit of administrative stuff. please turn off your cell phones.
if they ring i will be very unhappy. thank you, chief, for your kind enter destruction. a series of programs to commemorate the 125th anniversary of this great court. to that end a committee of judges and lawyers was appointed to plan a number of events and publications that would tell the story of the second circuit as reflected and the impact on the cultural and economic climate of our nation and lives of the judges who have labored here. the names of those folks who have served are on the back of your program. today's panel discussion is the fifth in a ser ri of programs planned by the committee and executed through hard work of the court family and its
friends. a distinguished scholar and a panel of lawyers and judges will explore the circuit's relationship with regard to procedures and much much more. before he came to the bench played an active and vital role during the 20th century. i suspect many americans could tell you thurgood marshal who argued brown versus board of education. i fear few have a sense of
marshal as a historic figure. i confessed i was among them until i read his terrific and most magnificent book. if you haven't read it i commend it to you. recently it has also pulled back the myths of the past to give us a sense of the america in which marshal lived with daily danger inviting racial prejudice and injustice. marshal has a connection to this court. he served here for four years before being appointed in 1965 and later the supreme court in 1967. that was the year i graduated from high school. following the supreme court appointment he claim the circuit
justice. the circuit justice is source of a judicial god parent looking after us. it had been our intention to begin with a presentation by marshal's first clerk at the second circuit. judge winter is recovering well. i speak. i know that i speak for all of my colleagues when i say we look forward to having judge winter back with us soon in good health. many of us have heard his delightful stories. judge winter at the funeral in 1993. a copy of that has been provided
with you. let me read with you. marshal only on on interim basis. it was a method by which judicial appointments were made while congress was not in session. the judge served on an interim basis until confirm order not confirmed for marshal the interim was long. his nomination language for eight months during that time he was treated as a visiting judge and had no permanent chambers in this building. every two weeks or so he would pack up his files and move them to a vacationing judge's office. can you imagine that? having to pick up your files and move them around? i try to think of some of my
colleagues. back to winter. in spite of serving as a judge marshal carried out responsibilities with his good humored perspective on life. most famous men or women rarely live up. thurgood marshal outdid his press clippings. he was a warm friendly man, a totally lovable human being. i was his clerk in his first year as a judge on the court on which i now sit. every morning he presided attended by clerks from other chambers. it was salty language and booming laughter. he was jukind to and love bid b
clerks. he was the improvable object against injustice and a warm and kind human being. he was mortal although that came as a surprise. his legacy to the nation is indestructible as are the cherished memories we have of him. today we will hear from people who worked a the supreme court with marshal. we will learn how marshal's influence continues today through the law clerks he trained. i app absolutely certain it will prove to be a memorable afternoon and early evening. our panelists knew one of the graess in the 20th century.
rights and civil liberties come into law. our panelists tonight have one thing in common. each of us had been rated good fortune who by the time we got to know him was already very much a living legend including winter who unfortunately was unable to attend tonight due to illness. we stand and look at his entire career on the bench. ral of was the very girs clerk and a clerk for the final year in october term 1990.
one passed -- one present and one future. each has a different texture and character. each was changed by the competition and by the year's docket. certain aspects were perennials. that's what we called him at his request he didn't want to be called justice or mr. justice. he wanted to be called boss or at the most formal, judge. he called us knuckle heads and some other names perhaps we'll
penalty if mob justice didn't get to them first. the civil rights cases leading up to and following brown, his years on the second circuit. his years on the supreme court, his views about law and life and current events, his heros. he was a master story teller. he was very vivid and very blunt. as you heard he was riotously funny. my year he just turned 80. there was constant speculation. one day he told us he didn't plan to leave the supreme court until age 110. we asked him what would cause him to leave then? his answer was this, shot by a jealous husband. [ laughter ] so those post conference
discussions were how clerks got to know him. our discussion tonight will illuminate this great man as well as his work to supreme court justice. i will begin by asking each out of our panelists asking what their year was life. i will put more substantive questions to the panel and invite their reflections and discussion. i fair to leave a fair amount of extra time at the end. i may single out an article three. we'll open the podium to former clerks who wish to share a brief thought or reflection and to get the panel's take on what they have said and then time permitting we'll take questions from the rest of the audience. with that let's get started.
i'm going to begin by asking each of our panelists, what was your year like? let's start with you. >> first let me just say how thrilled i am to be here. thank you for inviting me. it's wontderful to be here. i guess it's not surprising since we were adjacent in recent years. i think when you're a clerk at the supreme court for anybody you feel as though you have won the lottery. it is a great job.
i think he was the greatest most influential lawyer of the 20th century. to walk into that set of offices and to realize you were for somebody who had that place in american life and not just as a matter of like the important things he had done, but to feel as though you got to spend a year with this incredible man was a very very special thing. as you say, it was the year that he was not disappointed. he was larger than life.
you start with the cases and he would tell you some times that your views were wrong. i remember when you pressed too hard on something he disagreed he would point to the commission on the wall and make you get up out of your chair and go to the kpli commission on the wall and read whose name was on it. [ laughter ]
especially with the jim crow south. he was also a phenomenal story teller. he could make your weep, make your laugh, make you do both at the same time. there were times when we were falling off of our chairs we were laughing so hard. this was the most remarkable thing. i feel like i repeat a story on wednesday that i told my clerks on monday. he never repeated a story. like a new one would come out every single day. the thing i most regret is that not one of us had the sense to just write them all down as soon
as we left his office. you know, i can recapture maybe .1% of them. it seems to be a terrible loss, the way he spoke, the way he told stories, the kind of history he had to tell. it was an incredible time for me. it was a year that i think of as one of the luckiest things in my life that i got to spend it there with him. >> it was the most exciting time of our life. i'm hopeful we don't repeat ourselves too often in saying how important the privilege was. it was pivotal in my life, my colleagues, wonderful experience and a great family.
that clerk in 75, 76, one year after water gate ended with nixon resignation. it was a different time. when i was hired it was one of my long-time heros. i was thrilled. at the time he was an old drinking buddy of thurgood's. he had many drunking buddies. they tended to enjoy bourbon. he said to me if you're good enough for him you're good enough for me. i was so flattered he said this to me. i later learned it was one of his lines. if you're good enough for him.
but he was a humble man in the end and we were all desperate to be good enough for him. so that was an interesting year on november 12th, 1975. justice douglas resigned under some pressure from his colleagues. on november 28th, 1975 the republican president nominated john paul stevens to the court. 19 days later, december 17 the democratic controlled senate voted to confirm justice stevens. he was sworn in and served out the term. it was a different time. the big case is our year. we may talk about these later a little bit. the money equals speech case it
was near and dear to his heart. they were fun and exciting. we wrote the most boring court opinio opinions. they are not close and some how we got the dogs. i wrote -- i drafted for the judge an opinion on the horses and burros act. they tended to be unanimous opinions but justice marshal cared about the craft and was noless demanding in the quality of the majority of opinions we get to write as for the decents. we got to meet members of the family. she was in the u.s. attorney's
office for new york fans. when i was there we got to know sis sis and john and be a part of the family. it was an absolute thrill. >> well, i joined this distinguished panel in giving thanks for this great opportunity and say to chief judge thank you so much. i have to say, one of the highlights of my life was recommending her for a clerkship and then going to visit and seeing what her time there was like. i want to tell you about my interview for the clerkship. i had one of those horrible colds where you have no voice and terrible things are coming out of your nose. i gasp and said could i possibly postpone the interview? there was a long interview. you don't postpone a meeting with thurgood marshal.
i come with my box of kleenex under one arm. i can't get a word out. he said my dad had a cure for what you have. you take qinine and whisky and you leave out the qinine. he said you want the job? thank goodness. i said yes and they pushed me out of there. i think nobody wanted him to get a cold. so it was the era of many cases. there were about 183 that year. and when the cart would come down the hallway, the squeaky wheels and we would have, you know, 30 a day to do, i remember the first day it took me all day to understand what the issue was. i thought there's no way i'll be able to do this job. the judge would have a blue
pencil and write comments. we wrote memos on every one. he was not in a sert pool and he was proud of that. the comments were one of the ways which we learned. we learned a lot about what battles he thought were worth fighting. and just two other words. one teasing was the mood of the chambers constant teasing set the tone by the judge. nicknames of every sort. i was the only woman in this chambe chamber or any other chambers. there were lots of names that i'm not going to repeat. at one point one of my koe-clcos said why do you call us these names? he said you're going to get called worse. it was a good reminder.
my year was 1980 there was a presidential election. president reagan was elected and the senate changed to be republican controlled. there was a moment when justice brennan came to the chambers and the two justices looked at each other and it's like oh my goodness the world has changed and they walked down the hall arm in arm. it feems like that to other times as well. my year also had a women in the military case. my fellow clerks told me i wasn't allowed to take part in it because i was biassed. and abortion cases and many othe others. he was my hero my whole life. i went to law school because of civil rights movement. for me the chance to learn from him was incredible.
the surprise for me is what an outstantding lawyer he was. i think about him just about every day. >> it's such an honor to be here. it's wonderful being here. by the time i got my clerkship they did not interview applicants. wiz clerking many this building for fineberg. we were actually talking to the judge. we were in the judge's chambers talking about some case. he was circuit justice for the second circuit. they talked quite frequently. the judge's assistant came in
and said justice marshal is on the phone. he went to get his phone. the assistant said no. i kind of like sheepishly look at the judge like can i leave your presence in the discussion of this important case to take a call from justice marshal? he was a wonderful man. he assured me it would be fine. i left and went to my desk and picked up the phone. this voice said you still want a job? i said yes. i would love this job. he said good. you got to job. see you in july. for a minute i wondered if it was like some friend of mine. [ laughter ] i didn't quite know how you go about figuring this out.
it wasn't obvious, what do you do. i waited a few days and then i called one of his current clerks. i said have you guys figured out when we were supposed to start. yes. come july 14th or something. i had never met him when i came. i think he was on vacation. i didn't meet him until a few weeks later. it was an amazing experience. i had become a u.s. citizen only three years before that. so the idea i was going to walk in this building and be in the presence of a figure of history was amazing. i mean we don't in our lifetimes get the chance to meet a lot of people who really change the course of our society, and muchless so do we get a chance to actually spend literally
hundreds of hours in their presence talking to them or at least hearing their stories. you know, it was mostly a and -- this was some significant things about the term, the court decided garcia versus san antonio public transit authority overrules national authorities, that was a very important case. it was also the year in which the number of death penalty cases skyrocketed. this was 1984, and in the first few months there were death penalty cases all time. we'd split them up and stay up essentially most of the night because these cases ended up getting -- reaching the court after midnight for execution scheduled for 2:00 a.m. we knew the papers were coming because the clerk's office would get copies of the papers filed
if the district court in the afternoon, it would actually make it to the supreme court in the evening. it was a lot of these cases, we were up there in the middle of night most of the days. we were talking to the judge and said we didn't imagine it would be the many cases like this. and he said oh, don't worry about it, it'll come to an end pretty soon. and i looked at him, he said yes, you know there's an election in november. after the election you see a lot fewer of these cases. these are da's running for election. and it was powerful obviously and he was right. but there were cases after that but the volume went way down. and he cared enormously about each of these cases. in fact, these papers wouldn't get logged in until late at night and it was a protocol about it. the justice and sissy, his spectacular wife would disconnect their phone in the evening.
but when there was a death penalty case coming we'd have to call sissy in the afternoon to tell her that we'd be calling late at night. and then she'd leave the phone connected. so, there was a fax machine, i think only one at the court it was in the clerk's office. the circuit justice would sit in the chief justice clerk's office waiting for these papers to come. and justice wyden was a circuit justice in the case, and when the cases came in justice white went to ask each clerk how is your boss voting.
argue, i had to call my boss. so i called him and he come back and he said well, how is your boss voting, and i said my boss is voting to stay the execution. so, and that was unusual, i was the only law clerk, all of us when we were there we were the only law clerks body to place those calls. the thing i remember -- the
cases were fascinating, it was an enormous privilege to work on them. but what i remember the most was like, my colleagues in this group were the stories. and -- and often in our year, the stories, he actually came to us. i shared an office with my colleague rick pel das and it was a huge arm chair in that office. and in the afternoons the justice often stopped by and sat if that chair and started telling stories. we also came in on saturdays as did he, and sometimes saturday he'd come in and go straight to the chair where he'd sat and tell stories. and it was protocol in the court that if other chambers stopped by when the judge was telling the story they had to stay for how ever long it took. it was an unwritten protocol. it was a particular saturday whereby the afternoon, i'd say
there were 33 clerks, i'd say 25 or so were in the office, the office wasn't that big. most of them was sitting on the floor, half of them were starving because they hadn't had lunch and the justice was still telling stories. the topic of that day was the strategy leading to brown versus board of education. what was in the message was that while the goal of all this litigation that stand more than a decade was eventually bringing to to the court the argument that separate but equal was a violation of constitution. the last thing he wanted was for this argument to come up too soon because he thought that without all the building cases the court was not going to joseph rule plus c. so what he explained to us, it was a strategy about how to keep this argument away from the court.
and all the thinking that went into how not to answer a question if this question was ever asked directly in an oral argument in the early cases. it was amazing, i think given the way our society has evolved he had absolute control of how these arguments were presented. these days for any issue no matter how important there's going to be lot of different groups competing for foundation funding and someone's going to have an idea that they're going to do better by bringing the argument ahead of someone else. and by force of his intellect, personality and prestige he was able to control the way these were presented to the court over a period or decade and i thought that was the most amazing accomplishment and the biggest take away i got.
>> it is such an honor to be here with the tm family. and i see so many faces, and i won't call any but i'm very happy and honored to be asked to talk about my year clerking. before i got married and had children i always said my year with justice marshall was the best year of my life. and it started just the same as you. i got a call, no interview, you still want the job, want the job, yeah i want to job. and when i started, i wouldn't even sure he knew my name. the first time i realized he knew my name, the first week we were on the job, justice brennan retired and i got a call with this rough voice saying sheryl, he wanted me to write a statement for him and he dictated what he wanted me to write. and i was like i just got a call from thurgood marshall. he took us to lunch, i was the
only woman too, martha, in the chambers. he took us to lunch in the fist week, the first week he said to me, when are you get married gal. i was like why are you asking me that and nobody else, but he was very preoccupied with when i was getting married, and i was gal. for me, thurgood marshall went to college with my grandfather at lincoln university. not only were they colleagues they were fraternity brothers together. for me, it was like he was something of a surrogate grandfather, and i relished -- for me the highlight -- i would -- in addition to the time clerk conferences with him i would often just go and sit with him and talk to him and he would tell stories about martin, martin carpenter was a lot like him, a crazy guy who was sort of a cut up in school and didn't
get serious until later. and by the way, justice kagan i did keep a diary because paul had warned me about these stories. and i would run back to my desk after every session and write down stories, and we need to talk about what if anything i can do with this diary. one of the most profound stories he told me that year was how -- and this is in one of the biographies of tm, how langston hughes was the person who pierced his social consciousness. and i can get into that later. but the stories, and i recall these moments with tears, as you said would be streaming down your face and we could make you cry both with tragedy and comedy and it was like pure gold.
i mean whether dark or funny he'd do that to you. everything from going down to the village with langston hughes to partying with a crowd to his stories to the south, gilbert king's excellent book, double in the grove it's fantastic. he once narrowly escaped a lynching to his frat boy pranks to how he successfully defended men accused of rape. the highlight for me that year in terms of the work, was i got to -- in addition to working on some very boring, one maritime case, very boring majority is opinions i got to help him craft a dissent in a school segregation case. in that context i read every
single school's case that had ever been decided by the court. and i spent a great amount of time talking to him about this -- and this was his last year in the court, active year on the court. he was 82 and feeble and yet when i'd talk to him about some of these cases, he would just light up, you know, particularly early cases, a case from 1927, a case in which the chinese girl basically had to be a negro. in this moment i can feel a glimmer what it must have been like to have been a lawyer at ldf. so that was very special for me. a signature moment, i'll never forget this, and scott you may remember this. toward the end of the term i'm toiling away on this dissent. he's having a conference with us about our work and when we're doing. he asked me gal, when you gone have that draft to me in the school case.
i said well, i think i need about a month to get it together. and he paused and looked at me and said, i love you gal, but you got a week. and you know, it reminded me -- i learned so much in gilbert king's book about what that work ethic was. and damn if i didn't get it done in a week. to this day when i'm on a tight deadline, i remember that you know, you think you need longer than you can but somehow you'll manage if you just bear down and get it done. and, you know, the other thing about this year, and then i'll wrap it up. this was the only year on the court for justice marshall without brennan there. and, scott will remember this, he was the senior liberal justice and for the first time
on the court, he's having to kind of assert a leadership role and this man who had been silent at the bench suddenly started talking. and he started like -- and he would ask these questions, not every single case but he'd ask these questions that were clearly designed to rattle the lawyers, just go for the jugular and it was delicious to watch. so that's my year. >> you know everybody was talking about their time with with justice marshall so i wanted to put in mind. it started the same way. he called me over the summer. i was still hanging around harvard law school was taking bar review courses and i was in the law view offices when the call came. i got on the phone, and he said so you still want a job. and i said exactly what rickey said.
i said i'd love a job. and he said, what's that, you already have a job. and of course, you know, i'm turning white. and i said no no no, no i don't have a job. what i said was i'd really love this job, and i want this job. i don't know if you already have a job. and this went on you know, like two more times. i don't know if you already have a job. i don't know. finally he took pity on me. he said okay well, i guess if you don't have a job, you can have this one. you know, and see you july 4th, whatever, july 14th. that was my introduction to justice marshall. >> let's turn now more substantively as justice
marshall as a -- tm as you heard tended not to get the majority -- but he wrote lots and lots of --. and working on dissent with tm was really a staple with marshall. martha you have written about justice marshall dissent so i'm going to ask you to lead off this discussion. what was his he trying to accomplish? >> part of the phrase he used very often was pick your battles. that was a surprise tome because i had worked for a different judge who basically sometimes switched his vote to be able to dissent. he just loved dissent. and this was a very different idea and it was very clear tat judge had the recognition that he needed to work with his colleagues.
that he also wanted to get the kind of attention that comes and not be dismissed as someone who always dissents and therefore just not be paid attention to. he wanted to sustain the moral authority that comes from, you know, this is the moment to dissent. and this he was very explicit about, he said we won't have the energy if we're going to dissent on every one of these. that was his philosophy. on the other hand, there were lots and lots of cases where there were discents. i really watch that pick up over the course of his time on the court. the court of his time on the court. i read all the dissent to write my tribute to him when he
retired from the court and it was very striking that he was bearing witnesses and committed to telling the truths about human beings and people's experiences, particularly people who in one way or another had been marginalized by society. and one example famous dissent is united states versus crafts, 1973. the majority reject a due process challenge to a filing fee, someone seeking bankruptcy. it's like a butt of a joke. you don't have the money to pay for the bankruptcy. well, in any case the majority has a statement saying, look there's an installment plan that the court offers so people can pay the filing fee just spread out over a long time and it as up to be weekly, not much more than two packs of cigarettes and a little less than a movie. so in his dissent, justice marshall says it is perfectly proper for judges to disagree about what the constitution requires, but it is disgraceful for an interpretation of the constitution to be premised on an unfounded assumption about how people live. and he went on to explain what that amount of money meant to a poor person. that is just an example of what
he'd do over and over again in dissents and he would highlight, here's the details of actual life, and so just bear with me, i read all the dissents. he dissented and identified the experiences of poor people, prisoners minors, poor people, people with disabilities, native americans, members of religious minorities, immigrants, noncitizens, fathers, women, rock music fans, anyone who might seek an abortion, student. residents in puerto rico, members of racial minorities, protesters and people with long hair. and in each of these instances he described, you know, get behind the image. let's try to figure out who these people are and hear something about their lives. another was defending the rule
of law and objecting to the abuses of power by government officials. and related to that particular ly stinging dissent about abuses in his view by judges and their lack of candor, and he would often talk with historical analogies, he was a master of the the analogy. find a way to draw a connection between this and that case. so just one example, skinner, which i think was your year, skinner versus railroad labor executives association, in which there was a challenge to mandatory blood and urine testing for railroad workers and the majority upheld this mandatory testing. and in his dissent, justice marshall says we have to be careful when people talk about emergencies. the claim is there's an emergencies, there's dangers and therefore we have to give way. our usual concerns about
searches and seizures and privacy. and then he goes on in a paragraph, remember the japanese internment, remember the mccarthy era and remember the judges have had approving those things. there was a sense of history, barring witness to the history, reminding people of the history. and also really being very very concerned and here it's very explicit in one case and i'll end with this one. being very concerned that if the courts are no longer trusted by the most marginalized in society, that that would be terrible for everybody. and there he said that if the government expects the victims of the system to use the official channels to redress and protest, then those channels better be available. >> i'll jump in. i had very much to t same experience as martha did.
and what struck me was what a historian he was and how he tried to use his dissent to unpack history. my year was times for him, a bit of an apocalyptic year. it was the '88 and '89 year. it was the first full year of justice kennedy. it wouldn't clear what it was going to mean. there had not been a democratic appointee to the court since 1967. the court heard a whole series of cases that threatened to upset some very important pillars of the law as he saw it.
they adopted an ordnance on a contracting affirmative action plan that had been upheld at the federal level. tm thought it was outrageous that the court was imposing scrutiny and overturning this. he began the decision, and this was important to him to say this is the capital of the confederacy folks, and it ought to be a sign of racial progress when the the capital of the confederacy recognizes a problem of race discrimination in its
midst and acts forth rightly in a pattern to adopt it. our decision year is historical. >> my year, the death penalty was reinstated and i don't think there was an issue that was closer or more important to his heart than the death penalty. in 1973, furmen against georgia court had invalidated the death penalty in the country because it was arbitrarily imposed and tm thought well, we're done, the death penalty's done. but 35 states enacted laws reinstated the death penalty as did the united states for airplane piracy and suddenly it was back. and -- and in march of '76, the
death case, griffins against georgia was argued and justice marshall talked a lot about death. he told us stories, some of which are in the devil in the grove if you've read it, about defending people, mostly black men falsely accused of rape or murder. and if he won a life sentence, a guilty verdict and a life sentence, that was a win. he would not appeal a case in which a life sentence was imposed, because under the law at that time, if you appealed and won there could be a retry and the death penalty imposed. and i just see him right now sitting in front of me shaking his head and saying i have seen so many innocent negro men and boys sentenced to death. he always used the word negro,
he was not a fan of black and african-american, he fought for negro and that was what he always said. i have seen so many innocent negro boys sentenced to death i could never, never support the death penalty. and the case was argued and sadly, for those who are on the tm side of the ledger, by 7-2 vote in greg, the death penalty was reinstated. i went back before today just to reread the dissent and i was somewhat surprised at its lack of passion. that is to say, justice marshall engaged on the levers of the argument. you know, was it anti-threat -- antithetical to the morals or
evolving societial standards. it's hard to say since 35 states had enacted these laws. so he was arguing about deterrence and retribution and ideas of that sort. and i wondered, why didn't he talk about what he knew, which is the death penalty was often wrongly imposed on innocent people? and i thought -- as i thought about that, that, you know, at that time, you know, we didn't have the best unfortunate reservoir of the innocence project and dna analysis that teaches us that it's true, that people with an undue number of occasions convicted wrongly. and had he written the dissent which was in his heart which is i, justice marshall know that innocent people are convicted all the time and we can't sentence them to death, he didn't have an empirical basis to say that. he was just a lawyer. he'd sound like their mother or wife. so he didn't write that but that's what he felt.
as years went by and he was talking about it, he never lost interest in the horrible crime by the state of executing people. on that court, striking as well, the vote was 7-2 to uphold the death penalty. three justices on that court later said they were wrong. justice blackman was on that court. he said i'll never again tinker with the mechanics of death. justice stevens was on that court newly confirmed, he said it was the only vote in his career that he regrets. justice powell was on that court and said to his biographer that it was a mistake. there could have been a 5-4 reverse outcome and it just didn't happen. >> the year i clerked was not a year of big cases. i remember the reporter for the "washington post" who was covering the supreme court that
year called it the most boring term in modern supreme court history. but, the case that i remember justice marshall felt most strongly about my year was given that that you've probably never have heard of, but it was a really important case for him. it was a case called dickerson public schools. it was a case about a young girl, i think dickinson was in kansas, maybe, it was a young white girl who lived in a rural area who was many, many, many miles away from the public school and the school district imposed a very substantial fee for bus service to the school, more substantial than this poor family could pay. and the question was whether that was a violation of the equal protection clause. i remember it was a case that i was assigned to and i went into
his office along with my other clerks one day and to talk about this case and i said to him, judge i just -- you know i just don't think that you can rule for the girl. and he said why not. and i said, well, you know, indigency, not a suspect class and education never held to be a fundamental right. so i think rational basis scrutiny which is the lowest tier of constitutional scrutiny applies. there's a rational basis for this. so i think, you know, it's -- you have to rule for the school district in that "have to" kind of way. and this was definitely one that he did not have to do that, thank you. and you know, people are talking about nicknames, i was shorty always except on the really bad days when i was really really really knuckle head and that was
definitely a knuckle head kind of day. and you know, he just looked at me and he said what is this court set up to do except to make sure that children in this position can have the opportunity of a public education. thought it was incredible that anybody would think anything else. and we went back and forth and back and forth on that opinion. you know i would draft something and he would send it back, this is not good enough. and i would draft it again and he'd send it back and say make it more powerful. but he cared so much about that case, i don't think there was anything that was as closer than to his soul. as i said, it wasn't an african-american child. it was a white child in the middle of some big square, very white state. but the idea that the state was doing somebody to deprive a
child of a -- of an education, the opportunity to better your life was -- he just couldn't imagine it. that also was a 7-2 case. >> all right. let's move on to another topic. everyone knows we've heard, of course, about tm's interest both as a lawyer and on the bench of civil rights. as a justice what other areas of law engaged him? what other areas were of special interest to him? greg you were the earliest of us to clerk. you want to lead us off? >> well, an issue that, you know obviously many of our dissent were on criminal justice and racial issues and the like. he was very interested in libel law. now, he -- there's obviously some relationship between the press and the civil rights movement and of course times against sullivan was -- you know that in advertisement and in support of martin luther king.
tm loved the press. when he was a young lawyer before he got full-time engaged in civil rights work, he defended the baltimore afro american in the offices of mr. mcginn. i don't know if he had a first name, maybe you know. they had a very close relationship, he loved newspaper men. when the brown decision came down the baltimore afro-american headline read "thurgood wins" and of course he did. and so, in the mid-'70s when i was clerking there were big libel cases. there was sharon against times and westmoreland against cbs. in '74 a couple years earlier
gurts had been decided saying that the actual malice libel standard would apply not only to public officials and public figures but there could be a category of limited purpose of public figures yet to be defined but including people that thrust themselves into public controversy. and so a case came our way, fire stone against time, or time against fire stone which was a salacious divorce case out of florida. mary alice firestone had sued her husband. he had sued her back for adultery and cruelty and all of this stuff. the trial record of the trial had some colorful comments. according to testimony on behalf of the defendant, extramarital exka paid -- escapades of the plaintiff were bizarre
and would have made dr. floral's hair curl. testimony of the husband indicated he was guilty of bounding from one bed to another. with the erotic zest of a setter. so the divorce was granted, the judge said -- while he discounted some of this stuff, nonetheless it's the court's finding that neither party is domesticated. therefore, the marriage was at an end for lack of domestication. time magazine reported this in a milestone in about one sentence that more or less said the divorce had been granted on the ground of adultery. mary alice firestone sued in florida because in her argument any idiot would know that you can't get alimony granted if the grounds for divorce were adultery. so the last of domestication must mean something else even though the lack of domestication wasn't grounds for divorce in florida law.
the florida supreme court thought this was an egregious example of journalism. the case came to the supreme court where justice renquist running for the court found that mary alice firestone was not a public figure, notwithstanding the 47 articles in the miami herald and the 45 articles in the palm beach press and the press conferences she held and the fact that she was a member of the sporting set in palm beach and was regularly covered. and justice marshall dissented saying she had -- what'd he say, that he must assume that it was by choice that mrs. firestone became an active member of the sporting set. then, the thing that caught his attention was the alternative
as you might have imagined these poor claimants filed their claim on december 31st and this case made it to the supreme court. the agency was confused by what it meant. apparently these claimants had got advice from employees of the bureau of land management saying any time of the year including december 31st of this year would be fine. if the claims were filed by mail which these people had not done. as long as the claims were received by january 19th, there was timely -- and there was no evidence that it had been mailed any particular time as long as
it was received by january 19th. there was confusion here. as a result, justice stevens dissents. justice powell also dissents, indicating agreement with much of justice stevens' dissent. justice marshall said if the statute said before december 31st it had to be interpreted it that way even if congress might have meant or said by the end of the year, maybe this wouldn't be the world's best drafted statute. i didn't work on the case my co-clerk and colleague did. all of us thought that the justice was making a mistake here and very much wanted him to join the stevens dissent. and i think rick felt this most forcefully among us. and we had many discussions about this case. justice took this very seriously. we were in there in his private study many times talking about this, trying to persuade him to basically drop his position,
which he actually felt very, very, very strongly about. and he humored us for a while, but after a while, these discussions actually came to an abrupt end when the justice said with some annoyance in his voice, i was solicitor general of the united states. you can't run a government if some court decide before december 31st does not mean what it said just because it might lead to a harsh result. even though constitutional decisions didn't make this obvious, from time to time you saw that he had the sensibility of a government lawyer. in this case, i think in my mind illustrated very clearly the fact that -- that he came across and he came across with a lot of vehemence. it would not have been crazy for him to join dissenting approach
that justice steven, powell and brennan had taken. but in that moment he was the general. >> and not just in that moment. i had a case like this called torres. it was a case where employment discrimination suit, group of latino employees who said that their employer had discriminated against them. for some reason they lost in the trial court and took an appeal. for some reason the lawyer who filed an appeal did not include one of the names of the plaintiffs. and the question was, you know, you had a suit brought by five plaintiffs and only four were named, the last one was he going to lose his claim for time? all the clerks go in and he can't possibly lose his claim on a mistake by a lawyer. and his view is the guy lost his claim because his name was not on the notice of appeal.
and we argued with him and i remember him saying something like this. he said -- he said the only thing you can expect if you're a litigant is that the rules are adhered to. and the thing i had always counted on when i was a litigant for unparticular people, was at least the judges would follow the rules and that you can't have a system where everybody just decides whether the rule is good or bad or whether we want on the follow it or not but the greatest protection lies in the rules and sometimes that means you're going to have a bad result like this and it's just too bad because there's a greater value in having a system of rules that everybody knows is a system of rules. and that was so powerful to me. >> i had a similar experience. the one time he just shouted at me. we had a case in which a lawyer had missed a deadline. and i did not -- but it was a death penalty case.
and so his formal insistence on the rule and having no patience for bad lawyering clashed with his death context. the person was going to lose their habeas whatever. and the exact same thing you can't do this, you can't do this. and he shouted the stamp, ultimately the five of us -- scott remembers this. we had to move him. it was very unpleasant. it was only because of the death context that he changed his vote. yes, that's when i learned about that value and you articulated it better today. now i understand it a little bit better. >> all right. let's turn now to tm as a story teller. we've heard references to this. he talked a great deal about the battles he had fought in his career. what were some of the more memorable stories and more to
the point, what were the morals? what were the point of these stories. rickey you mentioned an exchange you had with tm. the second circuit confirmation hearing. can you lead us on? >> so, this is something talked about a lot and obviously it was an extremely traumatic moment in his life. so, i was working one afternoon and he's on his way home and he stops by my desk and says rickey i'd like you to read a transcript on my confirmation hearing to the second circuit. so, as he leaves i call the library and ask them to send me the transcripts. it turns out there was a lot of stuff to read, i think roughly a thousand pages and it was in all these different books. they were several hearings spaced out throughout the years. so, i read all of this, takes most of the night and i learned a lot in the process. so, he said -- justice marshall he was not named in the second
circuit in september 1961. the senate recessed a few days later and he got a recess appointment. and he was resubmitted at the beginning of the next session. so for most of 1962 he served on a recess appointment and shuttled back to washington for several different hearings before the senate judiciary committee. this committee was chaired at the time by senator eastland who was a segregationist and who was not pleased that there was perhaps going to be a second african-american judge on the u.s. court of appeals. there was only one at a time on the third circuit. to say that these hearings were an ugly affair would be a gross understatement. many arguments were raised throughout the time, mostly by the lawyer and investigator for the committee.
so, just to give you a flavor of what came out. the senate -- the senator's going to be focused for a long time on violations of texas law by a private lawyer in texas who had been retained on a case by legal defense fund. justice marshall was the director of the legal defense fund. there was no allegation linking legal defense fund or any of its employees to these allegations, this was a private lawyer but lots of time and energy and scrutiny took place. the committee complained at length, though, thurgood marshall had worked in new york for a long time he was at mitted to the maryland bar and not to the new york bar. he explained he practiced only in federal court, there was no requirement for him to be admitted to the bar of the state of new york. his membership in the national lawyer's guild received lots of
scrutiny and there were efforts to suggest that he had or at some time had had communist sympathies. he explained he resigned from the national lawyer's guild in 1949 over the guild's criticism of the handling of a trial of an alleged communist. along the same line, the committee focused on the fact a former communist party member of texas had organized sitting on behalf of the naacp. he was also the -- because he's sitting very orderly unlike other sittings and were pot all orderly so this apparently proved something. justice marshall explained that at the time of those sittings the ldf and the naacp were independent legal entities and
he had no connection to any of these things. no good argument was raised. other things was that he had experience in the very narrow field of civil rights law and didn't have a good understanding of the securities law cases that formed the staple of the work of the second circuit. he explains what his experience was, he had by that time argued many cases including the most important case of the century before the supreme court. that did not seem to convince the senator. the bottom line was that senator eastland did not want to let his nomination come up for a vote. and he was saved by the public senators from new york. who he held in extremely high regard and he was extremely grateful. and we had heart different snippets of this story but reading the transcript made it come together.
so kenan and javitts threatened to bring the discussion to the floor without a recommendation. on the basis of this pressure, eastland allowed a vote to take place. the committee vote was favorable, 11-4 and the vote on the floor was favorable, 54-16. all the negative votes before the senate were cast by southern democrats. so after this close to all nighter, the next morning, when the justice arrived, i stopped by and i asked him what he wanted me to do with what i had learned. i sort of assumed he was going to give a speech and wanted a draft. but he says, oh, nothing, rickie, i just wanted you to know about it. [ laughter ] so when he retired from the court i wrote about it in the
law review and i figured if he wanted me to know about it he probably would want others to know about it as well, so this included whoever happened to read my tribute. and the 675 people who i understand are here today. now one of the interesting aspects of the story -- and this also came out in the snippets throughout the year. this story colored his view of the leading political figures of the time. and i'll mention three. bobby kennedy was the villain. the justice thought that as attorney general he should have testified on his behalf and he actually had this idea which is actually kwaned in the current times. the administration puts the judicial nominee forward and the judicial jom nominee ends up having trouble for the senate, the attorney general should come and testify.
now we don't see much of that happening. it was a different time. the courts of appeals are much smaller and he obviously was a special case. he was a second african-american judge in the country and his nomination had been controversial for that reason. eastland had tried to talk the administration out of nominating him. also bobby kennedy was close to eastman, worked close to him and thought that bobby kennedy should have gotten to eastland and stopped the mistreatment. especially because the session was coming to an end at that point his recess appointment would have ended. i never actually checked this. the justice claimed that he could have gotten the second recess appointment but he couldn't get paid to do the job and that somehow another president kennedy said he would pay his salary on the second recess appointment which would have been problematic in what cases in which the government appears. i never got to the bottom of that. but bobby kennedy was a villain. his views on president kennedy
were somewhat more neutral. and he had -- but the hero in all of this was lyndon johnson. and he was the person justice marshall regarded as a true champion of civil rights. johnson had persuaded him to give up his judgeship on the second circuit and being attorney general. i think it was that difficult decision for him and obviously had nominated to the supreme court. the justice believed and he often told us that president johnson's political career came to an end because of his support of civil rights not because of his support of the vietnam war. and this is obviously an untraditional view but one that he felt, he believed very strongly. and we heard praise of lyndon johnson at least on a weekly basis but usually many times in a week. >> any other brief stories about t.m. with a moral attachment?
>> he liked to tell stories about race relations. and they all had a lesson. and they also all had a punch line. so he was very good at taking serious stuff stories and making them humorous but you got to point. one of my favorites is a ralph winter story which i'm sure he would have told had he been here which is when t.m. was on the second circuit, newly appointed. and he was supposed to go up to another judge's chambers for a photo session. the photographer had set things up and in the course of doing that had blown a fuse. so there was a call for an electrician. and there was a call for the electrician and the door opens and in walks thurgood marshall. so the secretary says oh, you must be the electrician. of course he wasn't.
but he comes back to chambers and he tells this story. and you know, he's not angry. he's not disappointed. what's his lesson from this story? at the time the new york trade unions were highly segregated so the lesson from this story is that woman must be crazy to think could be an electrician in new york city. [ laughter ] >> you got another story? >> yes. well, one story just illuminated his ability to play all roles. he would tell the parts of everybody. this particular one was about his time as an advocate in the south. one of his roles was to try to recruit people to be willing to be plaintiffs when they really were putting their lives on the line. he is in a car and he rolls into
town and he's surrounded quickly by a group of white men. and he says, this is it. this is it. this is where i will die. i will die here. he opens the window of the car a crack and the man right there says, you know, no negros can stay in a hotel here. and he's nodding like that. and the man says, so will you stay at my house? and that was a story that was catching us in our own assumptions that every white southern person was a segregationist and was terrible. he told jokes also in which he played every part and i'm just going to tell one of them, because it's the cleanest one. [ laughter ] so he did love to gamble and this is a joke about someone who was in las vegas and lost every single cent. and it's back in the time when
you actually needed a quarter to be able to use the bathroom. anybody old enough to remember this? to use a stall? so this man literally has not a quarter, nothing. so he goes to the men's room and he has nothing in his pocket and he's looking pathetic and someone takes pity on him and gives him a quarter. and he reaches to use the stall and love -- lo and behold the stall door is open. and as the judge would say, it wouldn't be a good story if he didn't leave there and take the quarter and put in the slot machine and it wouldn't be a good story if he didn't win big there and take it to the poker table and then to the craps table and invests the money in the stock market doing well and he hires a private detective. he says, please find more me the person who was my benefactor. a year goes by, two years goes by. finally the detective says i found the man who gave you the quarter in the men's room. and our hero says that's not the one i wanted. i wanted the one who left the
stall door open. now, you know -- [ laughter ] so, you know, i like -- i wasn't sure why it was in the story but i liked the story. as i thought about it actually is a pretty deep point. that is he actually wasn't looking for handouts. he didn't support handouts. he supported opportunities. [ laughter ] >> all right. we're running a little tight on time but i want to ask this question and get everyone's take on it. it's been 25 years since t.m. retired. what would he -- if he were to look at the trajectory of our country and the court over the last 25 years, what do you think he would say? i'm going to ask you to lead us off. you were clerking for him the day he announced his retirement. you've recently written about his perspective. what would he say? >> that's tough.
well, let me give you a sense of where he was the year i clerked for him. i mentioned that i worked on the school desegregation case. it's poignant for me to be working with him on something that was his life's work. and you know, if you're familiar with the court's education cases, dowell was the beginning of these three cases in the '90s where the supreme court essentially says it's time for -- >> it's over. >> -- federal courts to stop policing school desegregation. and this was very painful. he, like i said, brennan had stepped down and it was clear that we were going to be writing a dissent. and he could see the beginning of an erosion of school integration. and he felt utterly powerless to stop it.
i recall the most painful day of that year clerking for him, him rehearsing in the chambers with us what he was going to say to his colleagues, you know. he was saying things, trying out things like am i supposed to keep telling black kids it's going to get better? and then he told this painful tragic story about a black man he met -- this was in his civil rights years who said he really wished he could wake up and be white. you know, he was trying out these really hard things. and he was not successful. and you know, and this was my hardest day on the job. and you know, that was a rough day -- and i will say to his colleagues' credit, they waited until he died to really begin to put a stake in school
desegregation. but you know, the next week, next day he's back at work, back to being jolly. but you know, he had tough days like that. and i wrote a piece about justice marshall's approach to jurisprudence. and that case that you just mentioned that starts with a "k," that was one of my prime examples of justice marshall's race transcending, his universal empathy for downtrodden people. now, obama was president at the time, still is for a few days. but i said in this piece that i felt that the multiracial optimistic coalition that put barack obama into office twice kind of reflected the society that i think justice marshall imagined the rekrconstruction
amendments was supposed to be. he loved about how he would feel now. but one thing i know that i think, you know, i think he would clearly find what's happening in public education today and the fact that black and brown children are more segregated today than they've ever been quite depressing. but he did have this ability to get up and keep doing to work and i think he would be heartened by the new generations of young people who are, you know, fighting the good fight on the things they care about. >> others? >> so this was a very poignant moment. it was after the clerkship. it was a clerk's reunion in 1987, a number of you were there.
and an early former clerk gave a very depressing speech about how reunions are about celebrating things. and there was very little to celebrate at that time during the reagan administration when this former clerk thought that our country was going backwards rather than forwards. a very grim portrayal. and this was during the time when different law clerks were supposed to stand up and, you know and give reminisces. but after that -- and we're thinking early in the process, but the justice stood up after that talk, walked to the podium, and responded movingly, making very clear his disagreement with his former clerk, and he said that his dream, the justice's dream, was for the poorest black child in mississippi to have access to the same quality of
education as a child born into the rockefeller family, and -- the rich family of the timer. and he observed that his dream was unattainable. but that progress had been made and would continue to be made. and moreover he said if we never got there, it was still a wonderful dream to have. he sort of changed the mood of the evening into a mood of optimism. again, it's hard to speculate in a different situation what it would have been like. but he had an enormous reservoir of optimism in him and it came out -- came across quite frequently and in very important times. >> i agree. he's a fighter. he spent his whole life fighting for justice. he never gave up. >> all right. i'll offer just a thought, too,
which is he was pragmatic and he was also an optimist. and he took very much the long view. he used to say to us, it took 80 years for the reconstruction amendments to come along and we've got to be patient. and i think he would find much to celebrate over the last 25 years with the hesitations and reservations that we've mentioned. the election of the first black president. i think if you look at lawrence versus texas and the same-sex marriage cases, there's a part of this jurisprudence that was liberated with the freedom to act in personal spaces. he wrote saying you can't criminalize the obscene materials in one's home. he could celebrate that. i think he would celebrate the profusion of the public interest law. remember, this is a man who built what amounted to be the public interest firm in the united states and now it's got effective fak simplies in so
many different areas, and he would see that as a very good thing. and i think he would be thrilled with you and justice sotomayor. i think he would be very, very proud. so with that let me turn the floor over to our marshall clerks here. if any of you have a brief memory or question, please come to the podium so that those in the other courtrooms with hear your thoughts. but i'd ask everyone to keep the thought brief. we don't have a lot of time. please identify yourself and your year. >> scott brewer. i was a clerk in the october term of 1990 with sheryll. two quick things occurred to me from my time clerking, both about the death penalty. one was, this was the year that
justice brennan retired and we had already been in the long process of the dismantling of a lot of things that were very dear to the justice, but he had an amazing spirit. and, you know, speaking to this time, it just seems to me that he was always taking the long view. but inspiring us, telling us stories, rallying the troops, never giving up. and there's a saying from a philosopher that i admire a lot that taught me something or not about justice marshall. not by wrath does one kill but by laughter. come let us kill the spirit of gravity. i remember picking up an oral argument, i think the case was perry versus louisiana in which the state was arguing that they should forcibly give this man psychotropic drugs to make him sane enough so they could execute him. and from the bench -- we talk a lot about stories that he told us in private, most of which were not for family consumption, but this was something that he did from the bench. this was the humor from the bench where he was asking the
advocate for louisiana how do you administer these drugs, these psychotropic drugs. he said, well, it could be by injection or orally. and he said, well, the next time you give him the injection, why don't you just put in it enough to kill him. and the guy stuttered and he said oh. but he made a very striking point with that little pointed bit of humor. and i think that was the spirit of fighting, watching what was happening. and i think he would bring that spirit and encourage us to have that spirit today. >> thank you, scott. >> david wilkins, i clerked for the judge in the '81/'82 term. and since my former dean and current dean are here, this is the place where i had my first job with judge feinberg, which we have several members here, it's quite an honor to be here. i just want to make three really quick points.
one is to pick up on what justice kagan said, which is justice marshall would have been one of most famous people of our century if he never set foot on the supreme court. his legacy, it's not just public interest. the fact that we equate the legal profession with social justice is because of the campaign that justice marshall and charles hamilton and others waged in brown versus board of education. that is the reason why we did it, and that is the enduring legacy we need to keep alive. the second is about the stories. as my current dean said, the stories were amazing. but one thing to remember about the stories is they weren't just about famous people. in fact, his greatest stories were about ordinary people. in fact, he knew every marshal, every clerk, every person in the clerk's office by name. and he would tell these amazing stories about them. which is the same kinds of stories he would tell about the ordinary people that he met.
and my contribution that i wrote when justice marshall died was about the relationship between those stories and his great ability as a lawyer. because as robert coverage said, justice is narrative. and he was the master of narrative. and the final part is that so many of those stories were about his family. so goody, john, sissy, little sissy, you know, his entire family including his extended family, which his law clerks all became a part of. but there's one member of that extended family who was with him i think his entire time on the supreme court, since he was in the solicitor general's office. and that's mr. gains who was so much a part of everything we do. so he taught me that to be a great lawyer was to be about justice, to be about narrative
of ordinary people, and to be about family. and for that i'm eternally grateful. thank you. >> thank you, david. ira. >> hi. i'm ira feinberg. i clerked for justice marshall in the 1973 term. 1973/1974. and that was, of course, the year of watergate, and the last case of my term was a case called united states versus richard nixon, which led to the resignation of the president. but the story i wanted to tell has to do with your question, paul, about surprising views of the justice. each sitting of the court, the clerk's office would roll in all of the briefs, cart full of all of the briefs for the upcoming sitting, and the law clerks took turns choosing which case they wanted to work on, thinking they were going to take the big case that justice marshall would clearly be interested in writing on.
in my case the big case was a case of u nas versus owed guard, which most people had never heard of. the case unas versus odegard involved the issue of reverse discrimination, which was coming to the supreme court for the first time by a white student who had been denied admission to the university of washington law school and who claimed that he has been discriminated against because of an affirmative action program that the school had. at the end of the day the case became moot. 5-4 vote, decided it was moot because he had been ordered by court order into the law school and he was graduating by the time the court was getting around to writing an opinion. but this was mackey versus california three years before. and the piece that is surprising and i'd be interested in the comments of any on the panel is you would think you know where justice marshall is going to come out on this case. and he was really troubled by this case because he believed so
profoundly that people ought to be judged on their individual merit. and he said to me that i know where my constituency expects me to be on this case, but he was really profoundly troubled at the idea that anybody could be discriminated against on any ground. that's my story. i'd be interested in the panel's thoughts on that. >> brittney. >> vicki. >> oh. vicki. >> thank you. i'm vicki jackson, and i teach law at harvard, and i had the great privilege to clerk for the justice in 1977, which was the bocci term. i want to say thank you to the chief judge and everybody involved in this remarkable event. i clerked for the judge in the second circuit. he recommended me to justice marshall. i also had the great privilege to clerk in the southern district and it is always a pleasure for me to be back in
this wonderful courthouse. i have three comments. first, i remember recommending to the judge that we grant an extent -- i think it was a motion to extend the time in which to fire a serp petition. i didn't think it was a big deal. and he said look here. and i looked, he's pointing at the signature line and i said, what is it, judge? he said, who signed that. i looked and said it's the lawyer's secretary. what do the rules say? the rules say it has to be signed by the lawyer. denied. the rule formalism because the rules are what protect us. it's a theme throughout the clerkships. point two, bocci, justice marshall agonized over his dissent in that time. for a long time for or his separate opinion. it was a very complicated case both counting. but by then he decided for affirmative action intermediate
scrutiny rather than strict scrutiny as was the appropriate approach. and in his opinion my memory is he began by resort to history as so many of you have talked about, 400 years ago, his people had been brought here in chains, in slavery and he continued and brought it up to date. and the last thing i want to talk about, it probably doesn't need saying because we all know so much about his amazing deeds. but he wasn't only, of course, a wonderful storyteller and litigator, but he acted his ideals out. here's one small example. my year, october term 1977, there were two women clerks out of the four of us. and in my class in law school there were 15% women. so he didn't believe in equality only for one group. he believed in it for all. >> i think this unfortunately needs to -- barbara. go ahead. >> i'm barbara underwood.
i'm the state solicitor general, and i clerked for justice marshall in the '71 term. i was his first woman law clerk and only the fourth at the court. that may seem strange to most of you now. this was a time when many judges, including judges who thought of themselves as anti-discrimination judges, would say openly, oh, i couldn't have a woman law clerk. after all we sometimes stay late in the office, and what would people think. and i won't name the people who said that, but you would be very surprised, i think. justice marshall was ahead of his time on that issue, as with many others. he cared deeply about all kinds of discrimination, and in particular about discrimination against women. he told me that it was racist to think that only negroes needed protection against discrimination. and i thought i would tell you a little bit about how came to be selected. people talked about the call.
my judge for whom i clerked had recommended me. and at that time interviews were being done by former law clerks. i went to visit a former law clerk at his firm. he filibustered for the whole half hour, did all the talking himself, and when i finally said -- he said, is there anything else you want to know? and i said, no, but is there anything you want to know about me. and he said, yes, actually there is a question. don't take this the wrong way. my partners told me not to ask this question but it's really very important. how do you feel about dirty jokes. and i sort of took a deep breath and said, well, if they're funny, i laugh. >> great answer. >> and i sort of thought that was the end of -- he said, no, this is very important. the judge likes to be able to tell dirty jokes and not be concerned about them and he also
likes his law clerks to increase his repertoire. [ laughter ] not true, i think, actually, but that's what the person said. i went back to the d.c. circuit, told my fellow clerks about this interview. i got a call for an interview with the justice. h was then interviewing. and my fellow law clerk started plying me with dirty jokes to tell the justice. not really my style, but i tried to memorize a few, see what i could do. [ laughter ] and i walked into his chambers thinking, you know, can i really say, have you heard the one about -- anyway, somehow this had all gotten back to him because when i walked -- not maybe the dirty -- not maybe every bit of it, but the idea that there was a problem because when i walked in, he put his arm
around me and he said, i hear there's been some nonsense about my not wanting a woman around here. that's a lot of bullshit. and he proceeded to ask me about a recent case that he had been working on, and it was perhaps one of the more substantive law clerk interviews that people have had. i mean it was a serious discussion at the end of which he offered me the job. >> thank you. thank you, barbara. all right. i think this needs to conclude our program. but i just wanted to say this. >> judge ginsberg. >> one more. i'm sorry. forgive me. go ahead. >> thank you. i didn't mean to prolong things, but i think we should be grateful to the judges for bringing us together today for this opportunity. i just wanted to make two observations about the judge.
>> sir, may i ask you just to introduce yourself? >> i'm sorry. doug ginsburg. '74 term. i think that's after i read before greg, if i'm not mistaken. two points. one about -- they've all been glancingly referred to, the point about rule formalism a little more directly. but i think it's important to keep in perspective that the judge really was a great believer in american institutions, starting with the courts. i think the title of ron williams' very excellent book "american radical" is entirely misplaced. he had disdain for radicals and for all of the different movements that had arisen out of the plight of the american
n negro, all except the use of the law and ordinary procedures. second, of all of the stories that he told, you've heard a sample, there are more in gilbert king's book. there are more in the terrific play that laurence fishburne does, in all these stories, he's never the hero. never. thank you. >> thank you. [ applause ] >> i said at beginning that we had a world-class panel. i think you can see that was richly validated tonight. can we have a round of applause. [ applause ] let me turn the floor back to chief judge katzman. >> thanks again to paul
engelmayer for a spectacular job. [ applause ] >> and to a spectacular panel. your words will live on with us in our learning center. and we're so grateful to you for these reminiscences as you sit at the bench where thurgood marshall sat. tonight we'll look at mapp versus ohio. the supreme court found evidence cannot be used in criminal prosecutions if it's found in violation of the fourth amendment on search and seizure. that's tonight on c-span3 at 3:00 p.m. eastern. landmark cases returns