Next to be here to do it, i will introduce the panel for this evening. In this look back of Justice Thurgood marshall. To my immediate left if you have not guessed it is justice alayna kagan. 87. 87, seems like yesterday. All of our panelists this evening clerk for one judge or another in the d. C. Circuit. It is a good court. It was a great court. It was in the White House Counsels Office and the Clinton Administration and then in the policy council as deputy director. She settled at harvard not long after that became the dean of harvard law school. She became associate justice of the Supreme Court. Judge Paul Engle Meyer at the far end. You came on the court in 2011 in the southern district. He went to harvard and to harvard for law school as well. He was in private practice before going on the bench. Professor randall kennedy. He was a road scholar, a graduate of yale law school. He clerked for judge scully right on the d. C. Circuit. He joined in 1984 and has been a very productive and prolific author of books. Remarkably, while other colleagues write articles, he is writing books. Is the most grandiose member of the American Academy of arts and sciences and the American Association of philosophical. We have four marshall clarks including myself. All of us like virtually all of our other alumni of Justice Marshalls chambers, i think we are 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. We are going to reminisce a little bit if that is ok. I am not sure if there is more to it. I hope that that is of some interest. I will start with you alayna unless you would like to pass. Why dont you start with how the clerkship affected your career. I think clerking on this court affects everybodys career who doesnt. It is more than is justified. It is something that you put on your is a may and all of a sudden doors open. 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. You could not survive a year in his chambers without realizing that there were things that you do knew nothing about. It was an eyeopening experience in many respects other than just learning about the law. It gave you an appreciation for people who had fought for justice all of their lives and the importance of their work. Especially, his work. It made you think about what you are doing and why you are doing it. Not that one could never hope to have a career that was so much justice seeking as his was but i think, 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 him call you knucklehead . Justice kagan knucklehead was on a bad day. Shorty was on a good day. Shorty was maybe just yours. Paul, do you have something about the ark of your career . Everything she said i agree with. From my perspective, if you came to the clerkship thinking about doing public service, it could only e reinforce that impulse. Midway through the clerkship, i applied to become an assistant u. S. Attorney. I was delighted that he was enthusiastic. In fact, it turned out that he was quite a big fan of the department of justice. As it happened, three out of the four of us became assistant u. S. Attorneys. In addition to what alayna said, hearing his stories about trial courts lit a fire under me to be a trial lawyer and to engage with the craft of being in a courtroom. It reminded me of how important it was to know the facts and the records. One of the lessons that you learn from Justice Marshall was that facts are much more important than the law. Listening to the way he recounted the cases in his career and how decisive evidence and witnesses really taught you that the craft involved in getting one with the evidence as a judge, i think about him almost every day. I think about him in this context. I think about the defendants in my courtroom, i think about the families. I think out this may be the only day for these people to be in a courtroom. You want to make sure that there is a decency, honor, and dignity in which, the judge presents himself in court. You want them to leave with them feeling that they had been respected. I have his picture up in my chambers. It is a picture of him on the steps of the Supreme Court on may 17, 1974. I walk in there every day and it reminds me that we are in the justice business. I have a lithograph of him in my office. I acquired it not long after leaving chambers. Randy . I turned out to be a legal academic and one of the subjects that i write about is Race Relations law. What could have been better preparation then working for Justice Marshall. Over the course of the year, one of the great benefits of working for him was he seemed to know everyone. He had many stories and he was very generous with his time. He was very generous with his recollections. I would just ask him lots of questions and it turns out that much of what he shared with me became of use in my professional life as an academic. It is still very much of use. We have been joined by mrs. Marshall. Welcome. Alayna we will come back to you. Both of the year that i worked for judge Justice Marshall. We never called him justice marshal. Heres one that will not be so surprising. This is one that really brought on the knucklehead appellation. It was a case called cotter moss. It was a case about a white 12yearold girl in rural kansas. She lived some miles away from the nearest school. There was a bus service but they made you pay. They would not give a waiver, not even for indigent students. The school did not get to school. The idea of a state charging fees for the school bus was a constitutional challenge brought under the equal protection clause. We walked into his office and i laid out the arguments and i said to him, judge i think it is going to be hard for her to win. He looked at me and asked why . I told him indigency is not a suspect class and education is not a fundamental right. That means rational basis applies and the state has a rational basis here. He looked at me as if i must have lost my mind. His basic idea of what he was there to do was to ensure that people like her must get to school every morning. As long as he was going to be on this court, he was going to vote to make that happen. We descended in that case. The justice dissented. It was a seventwo opinion. Most of the court decided the case just as i laid it out to him and Justice Marshall wrote a dissent. The reason i say i was called a knuckle head a lot in this case is because all the cases i was on, it was the one he was most passionate about. What moved him more than anything was to trying to get rid of these entrenched inequalities in american life. This one did not involve race but it was all the same to him. I would bring in a draft of a dissent and he would say stronger. I would bring in another and he would say stronger. It went on like that for quite a while until he felt like i got the right level of passion and disgust. Obviously, he communicated some of his own. He took out his blue pencil and marked it up quite a lot. That is the one that i think will not surprise you but one that may surprise you was a case called torres. It was a group of hispanic employees who had brought an employment discrimination suit. They had lost and filed an appeal. The secretary to the lawyer handling the appeal left out one of their names on a notice of appeals that went up to the court. 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. All the clerks that thought this was an easy case and the answer should be, it is just a secretarial mishap and you are going to deprive this man of his claim was crazy. Justice marshall ended up writing the opinion for the court in that case saying yes, in fact, leaving out the name made all the difference and the court did not have jurisdiction to take the appeal. He spent a whole life litigating cases and you cannot expect anybody to bend the rules for you. The only thing you can expect is that they apply the rule straight. Indeed, people who litigated like i litigated, their salvation was in the rules. If he had a chance for success, it was because of the rules. It was because people decided to take those rules seriously. The rule of law and playing by the rules was to him, when of the most important principles in the justice system. Sometimes it worked against you and they put in the wrong name but in the end, especially for people who were disliked and were disadvantaged, they needed the rules. You better make sure you have created a system where the rules are there. I do not think he convinced a single one of us honestly but it was a powerful lesson for me actually as much as normal or so listening to talking about serena and the bus and the importance of education and eradicating inequality. This was a powerful lesson about the importance of rules and of law in our society. Even when sometimes it does not cut your way. Anybody want to comment . There was one decision he was most passionate about our term was richmond versus crooks. This involved municipal contracting in virginia. He was very distressed by the outcome there. One of the things that was interesting to me was not just his fundamental point that affirmative action is different from official racism but his focus again on the facts. He said to me, i want to make sure in the very first part of this paragraph that we make the point that this is the capital of the confederacy. I want to make a point that there is something ironic here about historically, confederacies bending over to do something progressive about race. Judge engelmayer he was deeply knowledgeable as a historian and wanted to make sure that anything that came out of his chamber was rich in social context. That is one of the most distinct memories that i have. My favorite case, my favorite opinion from the justice is a concurring opinion. It was a concurring opinion in a case in batson versus kentucky, the Supreme Court of the United States reversed an earlier opinion, swing versus alabama. The court said, the challenges was immune from question in the case that Defense Attorneys had wanted to challenge the prosecutors use saying that they had been based on race. The court said, challenges are just immune from question. If a prosecutor is using a challenge for trial related reasons, it is ok. Well, two things about benson versus kentucky. First of all, benson versus kentucky was triggered by the justices use of denial of social rights. The justice issued dissent after dissent after dissent. Basically, to alert the bar that at least there were a couple of justices interested in the issue. Secondly, to educate and persuade his colleagues. Over the course of the year, he succeeded. He succeeded in persuading other justices to come along with him and he triggered a reassessment. Then, the court agreed with his position. Agreed to reverse the decision. Then, the justice was not satisfied. He wrote a concurring opinion in which he said, i agree with what the court is doing but it is not going far enough. It should get rid of challenges altogether. It was that pushing of the envelope that brings a smile to my face and makes me think that that is the Justice Thurgood marshall that i revere. Since you mentioned to sorts of opinions i will mention another weird it is not just one opinion but a series. Justice marshall came to the conclusion that Capital Punishment is in all circumstances in violation of constitutional standards. He descended in all Capital Punishment cases in which somebody was sentence to death. That stand too, is a stand that makes me salute him. Let me ask you to elaborate. Justice marshall and brennan reiterated that. As opposed to, a tentative view that once something is settled that that is it. Do you think this was because of Justice Marshall or the philosophical difference . I think it was largely because it was Capital Punishment. Justice marshall was such an unusual person. He had such a broad, long, varied career. He had represented people who faced Capital Punishment and indeed, represented people who were executed though they not ought to be executed. He is a person who represented people who were put to death. I think that had something to do with the passion with which he saw this particular issue. There were several issues about which she was deeply impassioned but none more so than the question of the government taking someones life. I think it also reflects a deeper view that he had. I think he would say to us, this is a living constitution and when it matters, we ought to not feel impeded from reassessing it. Judge engelmayer if you look at the speech he made on the bus and tenniel, he says exactly that. The glory of the constitution and is its amend ability. It took too long of a time but the court eventually got it right. Absolutely, the Capital Punishment based on his own personal experience was something that he cared deeply about but there was also a philosophic view not to be locked into a wrong decision. Im not sure if everyone is fully aware that the justice spent much of his career trying criminal cases. Defending rape and murder charges time and time again. I remember he said once, when a journey brings back a sentence of life imprisonment, that is when i absolutely knew that the guy was innocent. [laughter] he told a lot of stories from that period and others. When i was there, he would come back from lunch and come into the clerks room, sit down in a easy chair and just Start Talking for maybe 30 or 45 minutes virtually every day and telling stories. There were some repetition over the course of the year by he had a huge repertoire. Those stories were unforgettable. Was he doing that when youre there . Justice kagan he did not so much come into the Clerks Office but we would go into his office when we would talk about cases and the way it typically worked is we would talk about whatever was on the court schedule, many more cases than are now on the court schedule. About 140. Then, we would talk about the cases and at some point, he would be finished and he would segue to what was storytime in Justice Marshalls chambers. It was quite the most unforgettable experience and my one regret of the year is that not one of us was smart enough to write them all down. I am sure i have forgotten 95 of them. I will tell you, i do not think he ever repeated one. It was remarkable. It was remarkable how many stories he had. It is remarkable how he remembered what he had been served. Through. I cannot begin to capture a lot of it. He was really did the greatest storyteller i have ever, across. It would really make you laugh and weep. A lot of the stories he told were pretty rough. They were stories about his boyhood, about what it had been like to crisscross the jim crow south as a trial lawyer. Often, fearing physical danger from wants, the police mobs, the police. They were terrible stories, a lot of them paired a lot of them. At the same time, he was so darn funny in his facial expressions and his intonations. Sometimes, you are laughing at a horrible story but it was an unforgettable experience that experience. Both the content and just listening to a master storyteller. Of all the stories you told, the stuff that sticks in my mind today is the physical courage of being a criminal defense attorney in mississippi, western florida, and the physical risk he took. He told a story about almost getting lynched. He told stories about clients getting lynched. He told stories about being tucked into the backseat of a car to be driven to the supporters home. Site unseen. Sometimes moving in the middle the night to be unseen. He said to us, what is an easy way to tell if a confession has been coursed . Coerced . He said, ask how big was the cop . He would also always joke about who would sleep next to the window a case a bomb gets thrown in. If you have not read his book, is boldly the single opportunity to capture what it was like for him to have these kill a mockingbird moments as a defense attorney in the south in the 40s and 50s. Randall the story i remember most is a story about his experience in tennessee after world war ii. There was black veterans defending themselves resorting to arms. They were charged with various crimes. He went and defended them and got most of them off. The local police got really angry with him. He is leaving the courthouse. He is with another lawyer. Justice marshall is driving and the police, the local police will him over and hustle him into their car. The police tell the other lawyer to stop following the police. According to Justice Marshall, he thought he was a goner for sure. He got the police were going to turn him over to the clan ku klux klan. So, they go back to town and they charge Justice Marshall with driving under the influence. They go to a local magistrate and the local magistrate says, why are you bringing this man . The police say, this man was driving under the influence. The magistrate says, i can tell right away. He tells Justice Marshall, breathe into my face. The axis out and says ask this out this man has not touched a drop of whiskey. Justice marshall drives off and gets where he is going and calls the empty and calls the naacp and says i have not touched any whiskey before but now im about to get drunk. Again, it is a horrible story but it is a true story. There is a book about this particular event. He always would punctuate it with his own brand of humor. I will contribute a couple. The stories he say were quite harsh. Not in the language or even in the events. One was a rape trial in florida. The jury went to the liberate and the prosecutor came over to Justice Marshall and said, see the bailiff over there, what about them . I will bet you five dollars that the jury comes in