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marshall clerks, four marshall clerks with myself, i was there from '74 to' 75, four d.c. circuit clerks, and all of us, like virtually all of our other alumni of justice marshall's chambers 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 we're going to reminisce a little bit if that's okay. i'm not sure there will be more to it than that for you, but we hope that is of some interest. and so i'm going to start with you unless you want to pass. >> okay. >> you didn't pass in class, did you? >> never. >> good. so why don't 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 everybody's career who does it. i mean, it's probably more than is justified. it's something that does, you know, you put it on your resume and all of a sudden, doors open. sometimes justifiably so and sometimes not. but i think, you know, what's much more important to me is just how the experience of clerking for justice marshall affected who i was and what i thought was important in the world. he was -- you couldn't survive a year in his chambers without realizing that there were things

you knew nothing about. and it was, you know, an eye-opening experience in many respects other than just learning about the law. and it gave you an appreciation for people who had fought for justice all their lives. and the importance of their work. especially his work. and it made you think about what you were doing and why you were doing it. and not that, you know, one could never hope to have a career that was so much justice seeking as his was, but i think the -- his voice in my head

never went away in terms of trying to figure out what i was doing and why. >> so you still hear the call knucklehead? >> knucklehead was on a bad day. shorty was on a good day. >> knuckle head you had to share with everyone else. shorty was maybe just yours. paul, you have something on the same question about the arc of your career? >> much of what elena said, everything she said i agree with. from my perspective, if you came to the clerkship thinking about doing public service and spent a year with the greatest legal public servant of the 20th century, it could only re-enforce that impulse. that certainly was the case for me in all the ways elena described. midway through the clerkship, i spoke to him about applying to become a u.s. assistant attorney, not knowing how he would react. i was delighted he was

enthusiastic. it turned out he was quite a big fan of the department of justice, and as it happened, my year, three of the four of us became assistant u.s. attorneys, and he was very encouraging of that. from my point of view, in addition to what elena said, hearing his stories about trial court 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 to know the record. one of the lessons you learn from justice marshall was as important as the law was, fact are probably in most cases much more important. and listening to the way he recounted the cases in his career and how decisive evidence and witnesses had been really taught you as a lawyer that the craft involved getting one with the evidence. as a judge, i think about him almost every day, and i think about him in this context.

i think about the defendants in my courtroom, about the family members who are there for sentencings or pleas in particular, and this may be the only day for these people in which they're ever in a courtroom. one of the things you learn from justice marshall is you want to make sure there's a decency and honor and dignity that attends the way in which a judge comports himself in court so that for the people who are in a federal court for only one day in their life, they leave feeling enobnobled by the experience and treated fairly. it's something i have taken with me, and i'll end by say yg have his picture up in my reception area in my chambers. it's a picture of him on the steps of the supreme court on may 17th, 1954. and i walk in there every day and look at it and it reminds me we're in the justice business. >> i have a lithograph of him as well in my office. something i'm very pleased to have, as i acquired not long after leaving chambers.

randy. >> well, it was a great pleasure working for justice marshall. and it's made a big impact working for him has made a big impact on my career. i didn't know at the time i was going to be a legal academic, but i turned out to be a legal academic, and one of the subjects 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. very 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 an academic. and it is still very much of use. >> you have been joined by mrs. marshall. welcome. elena, i'll come back to you if i may. tell us about a memorable opinion by the justice. and whether you worked on it. >> yeah, i'll give you two, actually. one will be not surprising and one may be more surprising to folks. and both were the year that i clerked for justice marshall. we used to call him judge, we used to call him tm. we actually never called him justice marshall. but so here's the one that maybe won't be so surprising. it was -- this was one that

really brought on the knuck knucklehead appalachian. it was a case called cottermas, and it was about a school girl, a white 10-year-old, 12-year-old girl in rural kansas, i believe it was. and she lived some miles away, more than 15 miles away, from the nearest school. and there was a bus service, but they made you pay. and they wouldn't give a waiver for even for indigent students. so the result was this girl didn't 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 was a constitutional challenge brought under the equal protection clause, and we walked into his office, and i laid out, you know, the

arguments. and i said to him, you know, judge, i just think it's going to be hard for -- i think her name was serita, to win. and he looked at me, said, why? well, you know, indegency 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. and he looked at me as though i must have lost my mind. because, you know, his basic idea of what he was there to do was sort of to insure that people like serita 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 6-3 or 7-2 opinion.

most of the court decided the case just as i basically laid it out to him. and justice marshall wrote a dissent, and the reason i say i was called knucklehead quite a lot with this case is because of all the cases that i worked on, it was one he was most passionate about. you know, the idea of i think what moved him more than anything was trying to get rid of these entrenched inequalities in american life. this one didn't involve race, but it was all the same to him. and i would bring in a draft of a dissent, and he would say stronger. and i would bring in another, and he would say stronger. 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 you know, obviously, he communicated some of his own.

he took out his blue pencil and marked it up quite a lot. so that was one. that's the one that i think won't surprise you. the one i think will surprise you is also that term, and it was a case called torres, and it was a group of hispanic employees 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 to know jurisdiction to hear the appeal of this one employee of the group. the case came to us, and all the clerks that thought this was an easy case, the answer should be,

it's just a secretarial mishap. and you're going to deprive this man of his claim? what a crazy thing. and in fact, justice brennan thought it was that crazy, and justice brennan dissented from that case. but justice marshall ended up writing the opinion for the court in that case. saying that, yes, in fact, the court did -- that leaving out the name made all the difference and the court didn't have jurisdiction to take the appeal. this is what he said to us. he said that i spent my whole life litigating cases, and you can't expect anybody to bend the rules for you. the only thing you can expect is that they apply the rules straight. and indeed, 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 you have created a system where the rules are there. and i don't 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 and the bus and the importance of education and the importance of eradicating inequality, this too

was as powerful or more powerful lesson about the importance of rules and of law in our society. and even when sometimes it doesn't cut your way. >> paul, you want to comment along those lines? >> sure, one decision that he was most passionate about our term was richmond v.krosen, which was the case in which the court first adopted strict scrutiny for racial classifications for affirmative action classifications involving municipal contractor, and he was distressed by the outcome there. one of the things that was interesting to me was not just his fundamental point that affirmative action is different from out-and-out official racism. but his focus again on the facts, 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, the very first paragraph, we make the point this is the capital of the confederacy, and i want to make the point there's something ironic here about historically, the capital confederacy bending over backwards to do something for race and get backed down. he was a deeply knowledgeable historian and wanted to make sure what came out of his chambers was rich in history and in social context and not arid. that's one of the distinct memories i have. >> my favorite case, my favorite opinion from the justice is a concurring opinion. it was a concurring opinion in a case called batson v. kentucky. and in batson v. kentucky, the supreme court of the united states reversed an earlier opinion, swain v. alabama.

in swain v. alabama, the court said the preemptory challenge was immune from question. in the case, they wanted to challenge the prosecutor, saying they had been based on race and the court said, well, preemptory challenges are immune from question. if they're using it for trial related reasons, any reason whatsoever, that's okay. well, two things about batson v. kentucky. first, batson v. kentucky was triggered by the justice's use of dissents from denial. typically, people don't pay attention to dissents, but the justice issued dissent after dissent after dissent basically

to alert the bar that at least there were a couple 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 the -- he triggered a reassessment of swain v. alabama. and then the court agreed with his position, agreed to reverse swain v. alabama. but then the justice wasn't satisfied with that. and he wrote a concurring opinion in which he said i agree with what the court is doing, but the court is not going far enough. it should get rid of preemptory challenges all together. it was that pushing of the envelope that brings a smile to my face and makes me think of

just that's the justice thurgood marshall that i revere. >> since you mentioned two sorts of opinions, i'll mention one other. it's not just one opinion. it's 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 dissent, just as you said, in every case that came along. as opposed to a view that once

something is settled and you have dissented or maybe reiterated the dissent once, that that's it. do you think this was -- was this because it was justice marshall or because it was capital punishment, or because it was a philosophical difference about jurisprudence. >> i think it was largely because it was capital punishment. justice marshall was such an unusual person. he had such a broad, long, varied career. he had represented people who faced capital punishment, and indeed, he had represented people who were executed when they ought not to have been executed. he's a person who represented people who were put to death though in fact they were factually innocent. i think that had something to do with the fufrbancy, the passion

with which he saw this particular issue. there were several issues about which he was deeply impassioned, but none more so than the question of the government taking someone's life. >> can i jump in on that? >> please. >> i think it also reflects a deeper view about starry decises he had. after all, he was the lawyer who got plessy reversed in brown. i think he would say to us, this is a living constitution, and when it matters, we ought to not feel impeded from reassessing. if you look at the speech he gave on the bicentennial of the constitution, he says exactly that. and that the glory of the constitution is its amendability, that it was refreshed in 1868. that it took too long a time, but that eventually the court got it right. and so absolutely, the capital punishment based on his own personal experience as a criminal defense lawyer was something he cared deeply about.

but there was also a philosophic view not to be locked into what he regarded as a wrong decision. >> i'm not sure everyone is fully aware that the justice spent by far the better part of his larger 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's when he absolutely knew that the guy was innocent. >> yeah. well, he told a lot of stories about from that period and others in his life. and i'm not sure whether this was true, when you all were clerking for him, but his practice when i was there with

phil bryson and karen hasty williams was to come back from lunch, come into the clerk's bullpen, the three of us in one room, sit down in a leather nog ahide easy chair, and just start talking. for maybe 30 or 45 minutes, virtually every day. and telling stories. and there was some repetition over the course of the year, but he had a huge repertoire. it wasn't a lot. and those stories were unforgettable. was he doing that when you were there? >> he did. he didn't so much come into the clerk's office, but we would go into his office when we would talk about cases. and the way it typically worked is we would talk about whatever was on the court schedule, many more cases than are now on the court schedule. about 140.

>> 160 when i was there. >> 160, okay. and we would talk about the cases. and then at some point, we would be finished, and he would segue into what was sort of, you know, story time in justice marshall's chambers. it was quite the most unforgettable experience. and my one regret of the year was that not one of us was smart enough to write them all down. because i'm sure i have forgotten 95% of them. and i'll tell you, doug, i don't think he ever repeated one. or at least, you know, it was remarkable -- it was remarkable how many stories he had and how he kind of remembered which he had been through before. but a lot of them i couldn't begin to capture a lot of it. he was really the greatest story teller i have ever come across.

and you know, it was a real kind of make you laugh, make you weep, because a lot of the stories he told were pretty rough. pretty hard. and they were stories about his boyhood. they were stories about what it had been like to crisscross the jim crow south as a trial lawyer. you know, often fearing physical danger from mobs, from the police. i mean, they were terrible stories. a lot of them. but he also was a great comic story teller. and a great comic generally. he was so darned funny in his facial expressions and his intonations. and sometimes you were kind of laughing and you thought what am i laughing about? this is a horrible story. but it was an unforgettable

experience. both the content of the stories he had to tell and just, you know, listening to a master story teller tell them. >> i'll elaborate on that. of all the stories he told, which spanned brown and the legal theorizing and strategizing that got there, the stuff that sticks in my mind today is the physical courage of being a criminal defense attorney in, you know, mississippi, alabama, western florida. and the physical risk he took. he told a story about almost getting lynched once himself. he told a story about clients who were lynched. he told of arriving at bus or train stations and having to be tucked in the back seat of a car so he could be driven to a supporter's home sight unseen and sometimes moved twice or once in the middle of the night to another home just to stay safe. and all the while, he's telling jokes about this. so i remember one time, he said

to us, how can you tell -- an easy way to tell if a confession has been coerced. ask the question, how big was the cop? and then another time, he tells a story about joking with another member of his legal team about who was going to sleep nearest the window in case a bomb got thrown in. and he's making this funny, and as elena said, horrifying stories, but it was part of the way he drew you in and drew out the stories. if you haven't read "devil in the grove" that's probably the single best opportunity to recapture all of these stories or many of them in about a 200-page write-up, it captures what it was like for him to have these to kill a mockingbird moments as a defense attorney in the south in the '40s and '50s. >> the story that i remember the most is a story about his

experience in tennessee after world war ii. there was a black veterans defending themselves, resorted to arms. they were charged with various crimes. he went, defended them. got most of them off. the local police got really angry with him. he's leaving the courthouse. he's with another lawyer by the name of z. alexander lube. so justice marshall is driving, and the police, local police, pull him over. and hustle him into their car. and the police tell z. alexander lubey to stop, stop following the police. z. alexander lubey just follows and follows. and according to justice marshall, he thought he was a goner for sure. he thought the police were going to turn him over to the ku klux

klan, and then they got cold feet because z. alexander lubey was following. so then they go back to town and they charge him, they charge justice marshall with driving under the influence. and they go to a local magistrate and the local magistrate says, why are you bringing this man here? and the police say, well, this man was driving under the influence. the magistrate says, i can tell right away whether this man is driving under the influence. he tells justice marshall, breathe into my face. and so justice marshall, he says -- and the man doesn't flinch. he says this man has not touched a drop of whiskey. you know, release him. justice marshall gets in the car. drives off. gets where he's going. calls the naacp and says, you know what.

i had not touched any whiskey before. but now i'm about to get drunk. again, a horrible story. it's also a true story. there's a very nice book about this particular, this particular event. but he always would punctuate it with his own brand of humor. >> i'll contribute a couple. and the stories, you say some of them were, what did you say, harsh, hard? but not in the language, necessarily. or anything like that, or even in the events. but one was i think it was a rape trial in florida, black defendant, white complainant.

and the jury went to deliberate. and the prosecutor came over to justice marshall and said, see the bailiff over there lighting a cigar? yeah, i see him. what about him? i'll bet you $5 that the jury comes in within two minutes of the time he finishes that cigar. what's that got to do with anything, how long he takes to smoke a cigar? well, the jury have been sitting there all day. they would truly like to have a cigar, too. that's the kind of story. it stays with you. the other one was about, i think it's in one of the books. it might be in laurence fishburne's play, i'm not sure. he came out of the courthouse, i think, in texas. about an hour's drive from

dallas where he was staying. so he -- pardon me, he was driving in the morning, being driven there, and picked up by highway patrol somewhere along the way and escorted all the way to the courthouse. when he came out at the end of the day, there was also a police car there and followed him to some place halfway back to dallas. and then dropped off. and when this happened the second day and he got to the courthouse, he went back to talk to the driver of the police car. said what is going on? i mean, describe just what i described. and the sheriff's deputy said, sheriff says you're not to get killed in this county. so -- what was your first impression when you met the justice? >> well, my first conversation with the justice actually came before i met him.

it was -- at that time, he was -- he picked clerks without interviewing them. he had some former clerks who did his clerkship selection. so i had been through their process, and he decided to make me a job offer. he called me. it was the summer after i graduated from law school. and he called me, and i remember the call actually came in to the law review office. they had to run and find me and get me. i came back and found a phone. and finally got him on the phone. and he said, so you want a job? and i said, i would love a job. and he said, what's that? you already have a job? and i was like, oh, my gosh. he didn't hear me.

you know. no, i just said i would love a job. no, i want this job. i don't have a job. i don't know if you already have a job. and this went on. three or four times before it's like i figured it out and he took pity on me. i'm not sure which happened first. but the only other thing i remember about that conversation before he hung up the phone, he said well i hope you like writing dissents. and we did write our share of dissents that year. >> lest you feel too special, let me tell you, i was in the office when he played that on another new clerk. what about your first impression, paul or randall? >> similar phone call without the you already have a job. but he said to me, you still want the job? and i said yes. he said, well, you got it.

get ready to write dissents. then he got off the phone. and i was summer associate at a law firm studying for the bar. and this all happened in maybe 35 seconds. and there's this quality of somebody just pulled a prank on me. i have no idea if it really happened and spent the next hour figuring out where to go in washington to confirm that thurgood marshall just made you a job offer. >> i had a similar telephone call. i remember the first time i met justice marshall face-to-face, and i was very nervous about it. very nervous. because, and the reason, it was a big deal in any event, meeting a justice, a person you're going to work for. but it was even bigger than that for me because i had heard about thurgood marshall all my life. i had heard about thurgood marshall all my life because my

father in columbia, south carolina, went to see justice marshall argue a case, rice v. elmore. it was one of the last of the white primary cases. and throughout my childhood, i heard my father talk about the importance of that case for him. now, my dad didn't really -- we didn't know what the legal issue, the big legal issue. it was a state action issue. but he didn't pay any attention to that. the thing that my father talked about over and over and over again was that the judges in the courtroom called thurgood marshall mr. marshall. and the reason why that was so significant is that because of

jim crow etiquette, black men were not referred to as mister. if you were a black physician, you might be called dr. so-and-so. if you were a black minister, you might be called reverend so-and-so. but typically, black men did not get the honorific mister. it was a sign of how distinguished thurgood marshall was that the judges and the other lawyers called him mr. marshall. i heard about that all the time growing up. and so with that backdrop, of course, it was a tremendous thrill. >> was it part of why you became a lawyer? >> in part, i'm sure. my father just -- again, it was -- i'm sure that it influenced my brother. i have an older brother who's a lawyer. but we heard about -- we heard

about that argument 100 times. >> i don't know if it's in one of the books, but there's a story about the justice needed when he was practicing, it was in the early '50s, and he neated a writ of some sort, and he needed to see the chief justice, and the thief justice was not to be found. he knocked on a door in the hotel, a hotel in connecticut, where the big conventions often are. k. street in connecticut. anyway, big hotel there. knocked on the door. >> mayflower. >> mayflower. somebody had given him a tip. he went in and there was the chief justice, he was playing poker. he was playing poker with the president, president truman and two other men. i don't know who they were. he went over to chief justice

and opened up the paper, must have had an affidavit, but the chief justice looked up and said, mr. marshall, is all this true? and he said yes, sir. signed the paper. left. never noticed that it was the president in the room. never said anything to him. if he noticed, he didn't say anything to him. >> those were the days. >> learned about that afterward. >> yeah. >> a little bit more informal the way we do business back then. >> i remember him telling that story with this coda, which is the chief justice saying if you have the guts to open that door, i've got the guts to sign it. >> much better. thank you. >> any first impression when you finally met him, randy? >> he was -- he was a large man.

and very imposing. i think nowadays, sometimes the views you get of sort of an evung yuler completely welcoming, he was a tough boss. and intimidating. and he definitely laid down how he wanted things done. and you knew how he wanted things done, and you paid attention. so i mean, from the get-go with me, in any event, i was very attentive to him. and over time, i suppose, the intimidation went away.

but i always found him imposing. >> i think it was the combination of his physical stature, manner, and just knowing of him as an historical figure, essentially. i think it was so intimidating, or at least overwhelming at first. >> go ahead. >> much the same. as intimidating as he was, i think back also on how accessible he was in the sense that you really understood as his clerk what he was thinking about. cases, what he was thinking about, the historical events he was recounting. you certainly didn't hide the ball. and he in the roughest language and the most explicit language would tell you who the heroes were, who the villains were, what he thought about the advocacy he had just seen. he would share views about colleagues. he read us aloud the letter he

was about to send to the chief justice on the occasion of the annual holiday party, which read, and all of my colleagues have a copy of this, essentially the following. dear chief, as usual, i will not attend the annual christmas party. i still believe in the separation of church and state. so he was letting us into the tent. so as imposing as he was, i appreciate as well that he gave us access to his take on just about everything. >> and he was -- you know, he cared a lot about what we thought about things. he listened to us. he asked us questions. there was a real dialogue between the clerks and the justice. but gosh, did he know who was boss. so sometimes you would get this treatment of, he would point over to his wall where there was a -- and he would say, what's over there. can you take a look at that? and whose name is on that commission? and then he had this --

sometimes people would say, well, you have to do x or y or z. you have to -- in that case i told you before, you have to vote for mr. torres. and he would say there are only two things that i have to do. stay black and die. he didn't repeat stories, but that expression, he repeated a lot. >> he had another one. another one that went along with that. so i remember once arguing with him about a case. and he said thank you very much. you know, and sort of put his hand up. and said, well, let me try again. i did this a couple of times. and then finally, i said, you know, justice marshall, let me just say, two years ago, you said this. and if you go the way that you want to go, that you're

proposing to go, it will be -- it will be just completely contradicting what you said two years ago. and he looks at me and he says, do i have to be a damned fool all my life? >> before i forget, i want to just say about the stories. as many as there were, i never heard one in which he was the hero. just telling you what happened. >> yeah, you had to sort of look it up afterwards to find out. >> but he was not self-aggrandizing in any way in those stories. but i think he very much wanted to pass on to us and ultimately well beyond us a real sense of what it was like for him. many years later, he did sit down with juan williams for a

long time and tell these stories and talk about a lot of things that he hadn't talked about for publication before. i thought the only thing, the only jarring note in that whole book was the subtitle of the book, it was thurgood marshall, american revolutionary. and revolutionaries don't follow the rules. revolutionaries were out in the streets, and he had no affection for people out in the streets. none. >> i'm sure randy has some thoughts on this, about his relationship with the civil rights movement generally. >> well, it was a complex one. on the one hand, he was mr. civil rights. and over a long period of time, through just extraordinary work, amazing diligence, amazing persistence, along with extraordinary skill, created the

groundwork for the civil rights revolution. at the same time, he was -- he viewed the world very much through a lawyer's lens. and his way of doing things was to attack through the courts what you didn't like, have those things invalidated, and after they were invalidated, then move. he was not a fan of direct action. and there was tension, i think. it's documented, there was real tension between him and the students who were, you know, the people who engaged in sit-ins. real tension between him and martin luther king jr. there was tension. he respected them. and they, with good reason,

respected him. and to move the world in the way that the champions of the civil rights movement moved the world, you needed all sorts of people. you needed division of labor. you needed people who saw things in different ways and pushed in different ways. but yeah, he had, you know, it was a complex relationship with some of the other members of the, you know, champions of racial justice. >> division of labor reminds me, there was one among the clerks in my years. did you all have anything like that? >> sorry? >> division of labor among the clerks? >> what was it? >> bill bryson took all the criminal procedure cases. karen -- >> served him well. >> yeah. karen took all the civil rights and related, anything related cases. and i got what was left.

and so that was, you know, international case of securities and labor. and there was, i mean, there was never a moment, never a matter on which we had any disagreement or had to work out exactly what he wanted to say because we were completely on the same wave length. he was, you know, in that respect, a conservative person. he wasn't trying to upset the security flaws or make waves just to make waves. >> the way he did it with us, he made it very clear early on that we were to be looking over one another's shoulders. so he told us early on, if i'm mad with one of you, i'm mad with all of you. and so we would look over, you know, one another's work.

and we were particularly conscious of his -- he was completely intolerant of lateness. you could not be late about anything. one minute was too late. and so, you know, we sort of had a collective punishment. i'll also say one other thing i remember about the year. and it had to do also with capital punishment. on the night of an execution, there would always be one clerk who had to stick around for anything late breaking. and some of the time, when everything had been done, the person who had to stick around had to call up the justice at home. and on those -- i did it a bunch because my fellow clerks, all

three of the other clerks, were married. i was unmarried. so i volunteered to stick around. you know, nobody was looking for me. but on those evenings, when i would call the house, i would pray that mrs. marshall would answer. i would be praying that mrs. marshall would answer. it made a big difference. the big difference it made was this. if mrs. marshall answered the phone, the justice would come on, and he would be very civil. he would be very nice, very polite, very civil. if she did not answer the phone and you got to him first, it could be a very tough conversation. >> i remember about the capital cases that his charge to us was not merely to execute the formal dissent based on his categorical

view. he said to us, i want you to comb each of these cases to see if there's some case-specific ground under which we can get this stay reversed. this was not an abstract doctrinal point for him. he wanted to save a life. so those wanted to save a life. so the phone calls came with the question of have you dug into this? is there something about this case we can say? >> this is one of my most vivid memories, for many reasons. the capital punishment work played an even more significant role in the court than it does today. first off, there were more executions. so a week, there would usually be, you know, several executions a week at that time. there were fewer procedural bars, so a lot of what we do now, people on death row come up, and there's no way even to hear the merits of the claims, because since that time,

congress has put into place a whole lot of rules that many, many, many more claims are procedurally barred than they were back then. and i think the third thing was that death penalty law at that much was much less well developed. so you didn't have -- there were a lot more open spaces in terms of what was allowed and what was not allowed. so, there were really quite a lot of these executions where there was a very serious issue that remained open and that you could get to. and you know, randy talked about dissents from denial in one area of law, but i remember there wasn't just the typical typical thing and he and justice brennan used to do about -- how did it go again, just the one-liner? i forgot how it went -- >> assistant with my view.

>> yeah, but we spent a -- we drafted so many dissents from denial in death penalty cases that year. i'd be surprised if we didn't do 25 of them, 30 of them in a year. >> either i was completely oblivious, or i was there during that happy interim when there were no cases, '74 and '75. does that sound about right? >> yeah. >> yeah, okay. well, my goodness. chilton, where are you? how much time do we have, if we have any? that's fine, but instead of a question, why don't you just tell us what your favorite recollection of the year, not just in chambers, but the year that you spent here. >> somebody else start on this. >> i'll start.

this is an outside of chambers memory. holiday time, late one day he told us that he was going to take us out to lunch the following day at a seafood restaurant, and we'd get in a car and wept to a seafood restaurant in anacostia. we walk into the restaurant, he's leading the way. and as thurgood marshall walked into the packed dining room, you could see people begin to realize who had walked in. and then slowly, one by one and then everybody, they just got up and just stood for him for maybe 60 seconds. and you know, he nodded and everyone sat down, but it was a moment that allowed you to see him the way the world saw him, and it reminded you that this is not your ordinary supreme court justice. this was clerking for a living legend. and there were moments of that throughout the year with elevator operators or tourists or others would bump into him, but that moment when he's out in the world and you suddenly realize, put aside what we've been talking about in the

conference room, forgot about story time, forgot about the individual cases. this is the magnitude of the man. this is what he has meant to our country. and i think we all saw it again after he passed away and his clerks had the enormous honor of serving as honor guard. we all talk about an hour shift in the middle of the night as people streamed in over there in the foyer. and people that were overtly emotional, there were people bringing copies of brown versus board of ed and just leaving it there. but you could sense just the gratitude to him and the enormous space that he had occupied in the 20th century. so, my story really is just having that window of an opportunity to look at him through others' eyes. >> i guess i would echo that and say that probably the most

enduring snapshot i have of that year was on the very last day that i worked for him, because on that day, i mentioned earlier, my father. my father came to the court that day. and the justice was very nice to my dad. my dad talked about rice versus elmore and seeing him, and they had a very nice talk, and these two people whom i revere, the memory of that is a deep memory with me. >> i also remember when my parents came to the court, and he was nicer to me that day than he was before or since. that was the only day that i knew he liked me. >> well, thank you all for being here for this hour and this

tribute to the justice. i hope there will be many more in the future with others carrying these stories forward as long as we can. thank you. >> so, it's a privilege to -- [ applause ] >> my name is jim o'hara, and i am a member of the morgue and of the executive committee of the supreme court historical society. this society is deeply honored to be the host of tonight's national heritage lecture. a few observations before the evening is over. first, justice kagan, judge ginsburg, judge engelmayer, professor kennedy, thank you for your insights and stories of your times with justice thurgood marshall. this has been a warm and

wonderful evening, and i am honored to have been part of it. the national heritage lecture is sponsored each year by the supreme court historical society, the white house historical society, and the united states capitol historical society. since 1991, when justice anthony kennedy delivered a rousing talk on president roosevelt's 1937 court packing plan, the three organizations have rotated hosting duties each year. this evening's national heritage lecture is, of course, a celebration of justice thurgood marshall's 50 years after his ascension to the supreme court. the society and all of us here are deeply honored to be joined

this evening by his wife, cecelia marshall, his sons, thurgood marshall jr. and john marshall, his daughter-in-law, jean marshall, and his grandson, edward patrick marshall. thank you so much for being here and honoring us with your presence. [ applause ] thank all of you for coming. and please join us in the east and west conference room, which are directly to your right as you leave the courtroom tonight. tonight, we will be serving two recipes from justice and mrs. marshall that are featured in the society's most recent publication "table for two." we are serving justice

marshall's maryland crab soup and mrs. marshall's mango brand. copies of "tables for nine" are available at the society's gift shop along with many other books and many other gifts. the gift shop is on the ground floor of the court and will remain open throughout the reception tonight. ladies and gentlemen, the 2018 national heritage lecture is now adjourned. coming up live on c-span3, landmark cases takes us back to

1971 when "the new york times" and "washington post" challenged the nixon administration for the right to publish what's known as pentagon papers. after landmark cases, we hear from judge douglas ginsburg of the u.s. court of appeals about the history and evolution of the u.s. supreme court. >> listen up! listen up! we've got a decision. we've got a decision. >> here we go. >> supreme court. the decision's in. ♪ >> the vote is 6-3. >> 6-3, we win! we win! >> all persons having business before the no