Transcripts For CSPAN3 Remembering Justice Thurgood Marshall

Supreme Court Justice Thurgood Marshall discussing his personality and skill as a storyteller and impact on their careers well hear from judges and harvard law professor and elena kagan. Im Doug Ginsburg and since nobody else seems here to do it, ill introduce our panel for this evening. This look back at Justice Thurgood marshall. To my immediate left if you have not guessed it Justice Elena kagan. Justice kagan was with Justice Marshall in what year. 87. Seems like yesterday, after having attended princeton and then oxford and then harvard for law and serviced in judge mcvaus chambers and all of our panelists served on a court. It was a good court. It was a great court. And was in the White House Council office and then Clinton Administration and then in the policy council as deputy director. Couldnt she keep a job apparently. Taught at university of Chicago Law School and then after getting tenure there moved on and settled at harvard. Not very long after that became the dean of Harvard Law School and then couldnt keep that job either and became associate solicitor general first and then associate justice of the Supreme Court. Judge Paul Engelmayer is judge in the Southern District of new york and has been since 2011. And i should have said, elena, you came on the court in 2010 mmhmm. And paul went to harvard and to harvard for law school and clerked for judge wald on the d. C. Circuit and then was in the Solicitor Office when drew days was solicitor general. Pardon me. And then was in private practice before going on the bench. And professor randall kennedy, the middle to my left, who was a roa roads scholar and clerked for judge kelly wright and 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, hes writing books. And of particular interest, he is a member of the American Academy of arts and science and the american philosophical association. So we have a array of three marshall clerks, four marshall clerks with myself. I was there as well in 7475 for d. C. Circuit clerks and all of us, like many virtually all of our other alumni of justice marshals chambers i think were very much affected in our careers and in our lives by the experience of having been in his chambers and in close contact with him for a year. So were going to reminisce a little bit, if thats okay. Im not sure there will be more to it than that for you, but i hope that is of some interest. And so im going to start with you, elena, unless you want to pass. Okay. You dont let people pass in class, did you . No, never. Good. So why dont you tell us about how the clerkship affected your career. Starting with the big one. How it affected my career. You know, i think clerking on this court affects everybodys career who does it. I mean, its probably more than as justified, its something that the you put it on your resume and all of a sudden doors open, sometimes justifiably so and sometimes not. But i think what is 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 couldnt survive a year in his chambers without realizing that there were things that you knew nothing about and it was an eyeopening 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. And it made you think about what you were doing and why you were doing it. And not that one could never hope to have a career that was so much justiceseeking 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 knucklehead. Knucklehead was on a bad day. Shorty was on a good day. With knucklehead you had to share with everyone else. Short was maybe just yours. Paul. Do you have something on the same question about the arc of your career . 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 would only reinforcement that impulse. Midway through the clerkship i spoke about applying to becoming a assistant u. S. Attorney and not knowing how he would react and very delighted that he was enthusiastic. It turned out that he was quite a big fan of the department of justice which he had served as s. G. And as it happened my year three of the four of us became assistant u. S. Attorneys out of the clerkship and he was encouraging about that. And in addition to what elena said, hearing his stories about trial courts, lit a fire me to be a trial lawyer and engage with the craft of being in a courtroom. It reminded me of how important 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 taught you that a lawyer as a craft being 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 theyre ever going in a courtroom and one of the things that you learn from Justice Marshall is you want to make sure that there is a decency and honor and dignity which attended the way a judge comported himself in court so for the people in a federal court for only one day in their life they feelen nobled by the experience and treated fairly. That is something i learned from him and taken with me and ill end by saying ive got his picture up in my reception area in my chambers. It is a picture of him on the steps of the Supreme Court on may 17th, 1954. And i walk in there every day and i look at it and it reminded me were in the justice business. I have a lithograph of him as well in my office. Something im very pleased to have that ive acquired not long after leaving chambers. Randy . Well, it was great pleasure working for Justice Marshall. And it has made a big impact working for him on my career. I didnt know at the time that i was going to be a legal academic. But you turned out to be a legal academic and one of the subjects that i write about is 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. And 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 generous with his recollections. And 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 a an academic and still very much of use. I see weve been joining by mrs. Marshall. Good to see you. Welcome. Elena, ill come back to you, if i may. Tell us about a memorable opinion by the justice. And whether you worked on it. Ill 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, he would call him t. M. We never called him Justice Marshall. But so here is the one that maybe wont be so surprising. It was this is one that really brought on the knucklehead denomination. It was a case called cotter mass and it was about a school girl, a white 10yearold, 12yearold 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 service but they made you pay. And they wouldnt give a waiver for even for indigent students so the result was this girl didnt get to school. And there was a challenge brought to the fee schedule, to the idea of a state charging fees for the school bus which was absolutely necessary for her to get to school. And it was a constitutional challenge brought under the equal protection clause and we walked into his office and i laid out the arguments and i said to him, judge, i just think that its going to be hard for, i think her name was serita cotter moss to win and he looked at me and said why. And i said well indigent is not right and that means rational basis applies and the state has a rational basis here and he looked at me as though i must have lost my mind. Because his basic idea of what he was there to do was sort of to ensure that people like serita cotter moss 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 63 or 72 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 culled knucklehead quite a lot with this case is because of all of the cases that i worked on, it was the one he was most passionate about. The idea of i think what moved him more than anything was trying to get rid of these entrenched inequality in american life. This one didnt 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 in another 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 obviously he communicated some of his own. He took out his blue pencil and marked it up quite a lot. So that was one. And that is the one that i think wont surprise you. But the one i think will surprise you was also that term and it was a a case called torres and it was a group of hispanic employee had brought an employment discrimination suit. And they had lost and they filed an appeal. And 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 of the clerks thought this was an easy case, the answer should be its just a secretarial mishap and youre doing to deprive this man of his claim. What a crazy thing. In fact, justice brenton dissented but Justice Marshall ended up writing the opinion for the court in that case, saying that, yes, in fact, the court did that leaving out the name made all of the difference and the court didnt have jurisdiction to take the appeal. And this is what he said to us. He said, i spent my whole life litigating cases and you cant expect anybody to bend the rules for you. The only thing you could expect is that they apply the rules straight. And indeed 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 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 for people who were disliked and who were disadvantaged, they needed the rules. And so you better make sure that youve create the a system where the rules are there. And i dont think he convinced a single one of us, honestly. But it was a powerful lesson for me, actually. As much or more so as listening to him talk about serita cater mass and the bus and the important of eradicating this is more about the important of rules and of law in our society and even when sometimes it doesnt cut your way. Do you something along those lines. The one decision he was most passionate about our term was richmond versus crossen which is the case adopted racial classifications for affirmative action racial classifications, involving municipal contracting in richmond, virginia. He was distressed by the outcome. What was interesting is not just his fundamental point that affirmative action is different from out and out official racism, but his focus again on the facts. And he said to me, as the clerk assigned to the system on the case, i want to make sure in the very first part of this decision or the very first paragraph that we make this the point that this is the capital of the confederacy and there is something ironic but us bending over backwards to do something about progressive about race and getting hit down and that is what we saw throughout the year. He was a deeply knowledgeable historian and what came out of his chambers was rich in history and social context and not arid. That is 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 batson verse you kentucky. And in batson verse you kentucky the Supreme Court of the United States reversed an earlier opinion swain versus alabama. In swain versus alabama the court said that peremptory challenges, a prosecutors use of peremptory challenges were immune from question in the case that Defense Attorneys wanted to challenge the prosecutors use ever peremptory challenges saying it was based on race and the court said well peremptory challenges are just immune from question. If a a prosecutor is using a peremptory challenges for trialrelated reasons, any reason whatsoever, that is okay. Well two things about batson versus kentucky. First of all, batson versus kentucky was triggered by the justices use of dissents from denial of soshial arory. People dont pay any attention from dissents but the justice issues dissent after dissent 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. And over the course of a year he succeeded. He succeeded in persuading other justices to come along with him. And he triggered a reassessment of swain versus alabama. And then the court agreed with his position, agreed to reverse swain versus alabama. But then the justice wasnt satisfied with that. And i 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 peremptory challenges altogether. And it was that pushing of the envelope that brings a smile to my face and makes me think of just that that is the Justice Thurgood marshall that i revere. Since you mentioned two sorts of opinions, ill mention one other. It is not just one opinion. Its a series. So, Justice Marshall came to the conclusion that Capital Punishment is in all circumstances in violation of constitutional standards. So he dissented in all Capital Punishment cases in which somebody was sentenced to death. And that stand, too, is a stand that makes me salute him. Randy, let me ask you to elaborate about that because Justice Marshall and Justice Brennan reiterated that in every case that came along as opposed to tentative view that once something is settled that youve dissented or reiterated the dissent once, that that is it do you think this was because it was Justice Marshall or Capital Punishment or it was a philosophical difference about juris prudence. Because it was Capital Punishment. And Justice Marshall was such an unusual person. He had such a long, broad, varied career. He represented people who face Capital Punishment and, indeed, he represented people who were executed though they ought not to have been executed. Hes a person who represented people who were put to death though, in fact, they were factually innocent. And i think that had something to do with the ferventsy and passion with which he saw this particular issue. There were manyishes, several issues about which he was deeply em passioned but none more so than the question of the government taking someones life. Doug, can i jump in on that. Please. I think it reflects a deeper view about stare decisis is. He was the lawyer that got plessy reversed in brown and he would say to us this is a living constitution and when it matters 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. Im not sure everyone is aware that the justice spent by far the better part of his career trying criminal cases. Defending rape and murder 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. Yeah. Well he told