Former clerks remember Marshall

BY CLINTON DICK

Harvard President Lawrence Summers delivered the opening remarks for the Marhall clerks panel.

“He seemed to me to never lose his passion for the law or for his work on the Court. He was always sober about his work on the Court and for the country, but was never sullen,” said Harvard Law School professor Scott Brewer about The Judge, as he was known to his clerks, or Justice Thurgood Marshall, as he was known to the rest of the world. “During his final years as a sitting justice, he never lost his ability to use jokes to rally the troops, and we were the troops.”

Brewer’s remarks were delivered on Tuesday in what was the second day of Harvard’s celebration of the fiftieth anniversary of Brown v. Board of Education, the 1954 Supreme Court decision that desegregated public schools. Tuesday’s celebration included a panel on “Reflections on the Jurisprudence of Justice Thurgood Marshall: A View from His Law Clerks,” and was comprised of eight HLS faculty who had been clerks for Marshall. Following Brewer’s lead, most of the former clerks gathered in Ames Courtroom had a funny story to share about The Judge.

Dean Elena Kagan told of the first time she talked to Marshall on the phone, when she was applying for a job in his office. Marshall said, according to Kagan, “‘Well I was wondering if you still want a job.'” Kagan replied that she would love a job and Marshall responded, “‘What’s that, you already have a job?'” Kagan said back, “You misunderstood, I want a job. I would love a job.” Not done with the joke, the justice remarked, “‘Well, I don’t know if you already have a job.'” Kagan said the exchange continued until Marshall finally “let her go.”

Professor Martha Minow also told a humorous story when she first interviewed with the justice. She had a cold and had arrived with a box of tissues. When Marshall arrived he saw that Minow was sick and remarked, “‘My daddy had a cure for what you have, you take quinine and whiskey and leave out the quinine.'”

At another time, according to Prof. Carol Steiker, one corporation was suing another corporation and Marshall told his clerks he had proposed a new rule at the conference held by the justices, “‘When one fat cat sues another fat cat, we don’t have jurisdiction.'”

Those gathered also shared memorable quotes Marshall often would use when clerks were trying to persuade him to take a certain position that he did not agree with: “President Johnson signed my commission, who signed yours” and “I only have to do two things: be black and die.”

But besides the jokes, “it was the stories” that he found so memorable, said Prof. David Wilkins. “The stories were such an intricate part of who he was.”

“He had such an eye for noticing details about people and for understanding the humanity in people,” Wilkins said, adding, “The law was ultimately about the stories of people.”

Prof. Terry Fisher said that Marshall practiced what he preached, or wrote about, to be more accurate. He was dedicated to eliminating all sorts of discrimination, including gender discrimination, and he practice this personally as well as professionally. “It is no coincidence there are so many up here,” Fisher said, remarking at the number of women on the panel. “He did it in the spirit of equality.”

At one point those gathered were asked to discuss any similarities between Marshall and the only other African-American justice, Clarence Thomas. Given the few remarks there does not seem to be many. “A spirit of mindfulness,” said Brewer. “I don’t know if I would say the important similarities go beyond that.”

“I first heard of Clarence Thomas through Justice Marshall,” said Minow, who clerked for the justice in 1980 and 1981. “He told us, ‘They are grooming him.'”

President Lawrence Summers delivered the opening remarks for the gathering, saying, “Brown was the first SC case I knew about.” He relayed the story of how in 1964 the elementary school he attended desegregated, which led the cub scout troop he was a part of to restrict its membership in order to exclude African-American children. Before, membership in the troop had been open to all elementary schoolchildren. Outraged, his parents decided to quit the organization, though at the time they allowed young Summers to stay.

“This was my first moral memory I have,” said Summers.

“Harvard has always been distinguished as a university and it has been distinguished at its law school by a commitment to the highest intellectual standards, but also a commitment to making the world a better place and serving society,” Summers added. “We may have reached a point of understanding and a fairly universal acceptance of basic moral principles. But acceptance of those principles is not genuine equality and it is not genuine fairness.”

“All of us can share the hope that equality will be more real, more quickly.”

Prof. Howell Jackson was also a part of the panel discussion.

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