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					                                     THE CENTENNIAL OF THURGOOD MARSHALL
                                                         06/16/2008 5:30-7:30 PM
                                                                         PAGE 1

JOHN SHATTUCK: So good evening! Good evening and welcome to the Kennedy
Library. I’m John Shattuck, the CEO of the Kennedy Library Foundation, and on behalf
of myself and my colleague Tom Putnam, the Director of the Library, tonight I want to
welcome you to this very special centennial celebration of one of our nation’s greatest
human rights champions, Thurgood Marshall.

Before introducing the program, I want to express thanks to the organizations that make
our forums possible, including lead sponsor Bank of America as well as our other
generous supporters: Boston Capital, the Lowell Institute, the Corcoran Jennison
Companies, the Boston Foundation, and our media sponsors the Boston Globe, NECN,
and WBUR, which broadcasts all these Kennedy Library forums on Sunday evenings at

In June 1961, John F. Kennedy nominated the leading strategist of the long struggle
against segregation to be a judge of the US Court of Appeals for the Second Circuit.
Thurgood Marshall had won the 1954 landmark decision in Brown v. Board of
Education. He had shaped the arguments for dozens of other civil rights challenges, and
he was already a legend in the civil rights movement. He was straightforward and plain-
speaking. When Justice Frankfurter, during an oral argument, had asked him to define
“equal,” he shot back, “Equal means getting the same thing at the same time at the same

Thurgood Marshall’s nomination was blocked for months by segregationists in the
Senate, and it looked as if he would never become a federal judge. But President
Kennedy, who hadn’t yet taken much of a stand for civil rights, surprised his critics by
defying the segregationists and pushing ahead with the Marshall appointment during a
congressional recess when it couldn’t be blocked. Thurgood Marshall was later named to
the Supreme Court by President Lyndon Johnson and went on to become one of the
greatest defenders of the Bill of Rights in judicial history.
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By the 1970s, when I had joined the staff of the American Civil Liberties Union,
Thurgood Marshall was the gold standard for civil rights and civil liberties, and what he
did as a Supreme Court Justice breathed new life into basic concepts of freedom like
equal protection of the laws and freedom of speech.

So to explore the legacy of Thurgood Marshall and what it means today, we’ve
assembled an extraordinary panel of speakers here at the Kennedy Library. Juan
Williams, who’s here on stage, is one of America’s leading journalists. We know his
voice from National Public Radio, his face from PBS, CNN, and Fox News, and his
incisive commentaries from Newsweek and the Washington Post. He’s also a frequent
panelist here at the Kennedy Library and a popular historian of the civil rights movement.
Most pertinent to tonight’s forum, Juan is the author of the critically acclaimed biography
Thurgood Marshall: American Revolutionary. He’s also authored several other major
books relating to award-winning television documentaries, including Eyes on the Prize:
America’s Civil Rights Years 1954-1965, and My Soul Looks Back In Wonder: Voices of
the Civil Rights Experience. Tonight, Juan will lead off our forum by introducing us,
through his biography, to Thurgood Marshall as the man who carried out a revolutionary
mission on the bench after making his mark in the civil rights movement.

Our first panelist, who will come up after Juan’s remarks, is a modern day Thurgood
Marshall herself. Nancy Gertner is United States District Judge for the District of
Massachusetts, whose extraordinary leadership for civil rights and civil liberties both on
and off the bench has been recognized this year with the 2008 Thurgood Marshall Award
of the American Bar Association. Nancy is a champion of the rights of women,
minorities, and the poor, and has never hesitated to speak out for justice when doing so
was not the popular line to take. When she was chosen by President Clinton to be a
federal judge, she commented that her career had been the reverse of those who keep
their heads down for years in order to preserve their chances on the bench.
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I’ve known Nancy since our days of law school together, and I can tell you that I’m
grateful that she’s one of my closest friends because I know if she weren’t, she’d be a
formidable opponent! An outstanding Yale Law professor as well as a judicial activist,
Nancy Gertner is everything that Justice Marshall wanted a federal judge to be -- the kind
of judge who can best defend our Constitution against today’s assaults on justice and

In 1998, Lani Guinier became the first woman of color to be appointed to a tenured
professorship at the Harvard Law School. One of our nation’s foremost thinkers and
activists on the meaning of justice and equality in a democratic society, Lani has
published many books and articles on issues of race, gender, and democratic decision-
making, and has sought new ways of approaching questions like affirmative action while
calling for candid public discourse on these topics. Her books include The Tyranny of the
Majority; Women, Law, and Institutional Change; Lift Every Voice: Turning a Civil
Rights Setback into a Vision of Social Justice; and The Miner’s Canary: Enlisting Race,
Resisting Power, Transforming Democracy. Before coming to Harvard, Lani was a
tenured professor at the University of Pennsylvania Law School, head of the Voting
Rights Project of the NAACP Legal Defense fund, and an attorney at the civil rights
division of the Justice Department of the Carter administration.

Our moderator tonight will be Sheryll Cashin, a Distinguished Professor of Law at
Georgetown Law School. Sheryll has written extensively about race relations,
government, and inequality in America, and her new book, The Agitator’s Daughter, a
memoir of four generations of one extraordinary African-American family, covers the arc
of US race relations from slavery through the post-civil rights era. Before joining the
Georgetown faculty, Sheryll worked at the Clinton White House as an advisor to the
president on urban economic policy and community development. And tonight she will
have a very special perspective on the legacy of Thurgood Marshall because she served
as Justice Marshall’s law clerk in the last year that he was on the Supreme Court, and
worked directly with him on cases in the Supreme Court.
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So please join me in welcoming to the stage of the Kennedy Library Juan Williams and
shortly, Nancy Gertner, Lani Guinier, and Sheryll Cashin. Thank you. [applause]

JUAN WILLIAMS: Thank you very much, and good evening to all of you. This is a
real honor for me to be here to join in this celebration of 100 years since the birth of
Thurgood Marshall. He was born July 2nd, 1908, in Baltimore, Maryland, and truly led a
life that transformed American race relations. He changed America in his time from a
country that lived under the rule of “separate but equal” Plessy v. Ferguson, the 1896
Supreme Court ruling, to an America that -- gosh, it’s unbelievable -- under Brown v.
Board of Education had the Supreme Court acknowledge the notion of equality of all,
truly live up to America’s credo. It seems to me in so many ways he is the true American
son of the Fourth of July, but as I said, he was born on July 2nd.

This is also a pleasure for me to be here because I’ve met so many people walking in, and
people come up to me and they say they listen to National Public Radio -- thank you very
much-- then people come up to me and they say, “Hey! I recognize you from Fox News.”
You notice they’re never the same people. [laughter] I don’t know why that is! Can’t
figure it out.

And it’s also a pleasure for me because I cover politics so much, to be off the campaign
trail and away from all of that for a minute … It’s been a really tumultuous year in terms
of American politics. We’ve got a candidate who is often said to be the John F. Kennedy
of his time in Barack Obama. This is a very interesting time because, to me, as someone
who was covering all these politics of the moment and going state to state, it just seemed
to me to be an interminable and cold affair. It was freezing out there. I like to tell my
friends out there it was so cold in Iowa and New Hampshire, even Georgia and
Pennsylvania, I said it was so cold the politicians were walking around with their hands
in their own pockets. It was that cold. [laughter]
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Tonight, I just wanted to talk a little bit before this really fabulous panel comes up about
knowing Justice Marshall as a biographer. I think that if any of you in here were seated,
let’s say for your own 4th of July picnic with all your family and friends, and I said to
you, looking out at your husband, your wife, your children, cousins, I said, “Pick one of
these people to write your biography,” I think you’d find it a very difficult task.

Imagine if you were someone who was on the US Supreme Court, a figure in American
history. Again, it would be such a daunting matter of selecting someone to write your
biography. I know if I was the person looking out across my dinner table at family and
friends, I would say, “Oh! Not one of these people, please!” [laughter] Too many
grudges; they know too much.

So after I had written a book about the American Civil Rights movement called Eyes on
the Prize, I decided what I learned from that book was that there’s a living giant among
us by the name of Thurgood Marshall. Amazed at his career -- I’m a child of the 1960s,
really, that’s when I was coming of age, and I was only touched with the passion of
Malcom X, with the eloquence and drama surrounding Dr. King. Thurgood Marshall
always struck me as rather an “old man.” Overweight, wearing the thick black robes of a
Supreme Court judge, he looked like an establishment figure to me.

And so I wasn’t captured by his story. I didn’t know his story. But as I was doing the
research on Eyes on the Prize, it just became apparent to me that there was this giant, this
man who had achieved a true revolution not only in terms of law but in terms of society
in our midst, and he lived in the same town I lived in.

He wouldn’t cooperate with me in terms of Eyes on the Prize; I couldn’t even get a
response. I was only told later that, in fact, it was because I worked for the Washington
Post, and I suppose, now looking back, my most famous former colleague there, Bob
Woodward, had done a book with Scott Armstrong called The Brethren, published in ’79,
a book in which Justice Marshall is portrayed rather as a buffoon -- someone who doesn’t
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work very hard, someone who comes in late, leaves early, watches TV -- that kind of
thing -- someone who was put on the court as a token gesture by President Johnson,
really not of the intellectual caliber.

Justice Marshall felt absolutely devastated, hurt by this portrayal, and feared that so many
of his colleagues -- his brethren on the court -- might have cooperated and been sources
for this kind of account. And he didn’t want anything to do with me or any reporters; he
almost never gave interviews.

So I’d gone off, written a book. I’d come back, but I would occasionally send notes up to
the court, persisting, asking for just a few minutes for an interview. No response.
Nothing. It felt like some of those people who buy lottery tickets. Nothing comes back. I
would just get nothing. Not even acknowledgment that I had called or written.

And then I was out of the office one day when, sure enough, the phone on my desk rings.
And this is the old days. There was no automatic voice message machine. There was a
receptionist, who would pick up the phone calls that rang more than four or five times.
And the voice on the other end says, “This is Justice Marshall, can I talk to Juan?”

Now, the receptionist was a friend of mine, and she said to this voice, “Yeah, right. I bet
you’re Thurgood Marshall.” [laughter] Because everybody knew I’d been trying to get
him! And he says, “What?” He said, “No, this is Justice Marshall of the Supreme Court.”
And she said, “I don’t know who you are, but I don’t have time for these games.” Bang!
And she hung up the phone.

Now, in this audience, we’re filled with so many illustrious people, people who may
themselves end up on the high court one day, so I want you to realize that if you are of
such standing in American life, you don’t have to put up with this foolishness. In Justice
Marshall’s case, he called back -- not to the receptionist, not to the newsroom -- he called
back to the publisher who at the time was Katherine Graham. And she took his call!
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And Katherine Graham found the man who was then the editor of the paper, Ben
Bradley, and they found that young reporter, and I got on the phone and I said, “Oh, my
goodness, Justice Marshall, I’m so apologetic. You know, I’ve been trying to get you for
so long, and people around me, my friends know about this. No offense intended.” I said,
“Why are you calling?” And he said, “Oh, I want you to come up for tea this afternoon at
4:00.” I said, “Oh, okay. And is that for an interview?” And, bang! He hung up the phone
on me. [laughter]

So off I go, and you go up those famous white marble steps of the court through the
columns. The US marshals take you to a special area to wait, and then they have
someone come from the Justice’s chambers to lead you back. And I was doing a TV
show in Washington at the time, and so Justice Marshall’s secretary, Jane McCale(?),
came over to say, “Hello, I know you from TV.” And I said, “You know, Miss
McCale(?), I’m so nervous. I’m finally going to get to see Justice Marshall.” She says,
“Oh, look, go right through.”

And so you go through this antechamber. There are a lot of young people who look like
Sheryll Cashin -- really smart, the smartest young legal students in the world now
working for Thurgood Marshall. And I finally come to the doorway. And there, beyond
the doorway, behind his desk looking like living history is Thurgood Marshall.

I stand there for the moment because he’s busy with his books. And I look up on the wall
and there is a live animal skin, and I know that it had been given to him by the leader of
Kenya, because in all the world when they needed to establish a constitution after gaining
independence from Britain, they had asked an African-American lawyer, Thurgood
Marshall, to do that job. And this was his payment. And also on the wall was a signed
version of a brief from the Brown case, signed not only by Thurgood Marshall but also by
John Davis, his opposing counsel in the case. Right there, the span of history, the
argument over race segregation in American life, in one document. And on his desk was
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a bust of Frederick Douglass, the famous orator and abolitionist, a man who had spent so
much time in Marshall’s home town of Baltimore. And then behind the desk, again, like
a living statue, there was the real Thurgood Marshall. And I understood in that moment,
you know, I was so nervous, but I was nervous because I just wanted to be able to have
the skill to tell his story in a way that would be persuasive, that would bring people to an
understanding of the importance of Thurgood Marshall in American history.

So I made some noise with my voice. I coughed loudly. Thurgood Marshall looked up.
And as he looked up -- again, so striking, thick black hair, thick grayish hair I should say,
combed straight back, these thick glasses on, some tears running down his face because
he had glaucoma, and then on the corner of the desk was a cane that he used to steady
himself. I could see that his legs were sticking out and he had on those thick white socks
that people with circulatory problems wear.

So I made some noise and sat down. And right away, he just became the most wonderful
storyteller. Thurgood Marshall was a marvelous storyteller. And we began exchanging
stories about Baltimore, the Baltimore that he was born into, about his family. And you
come to understand, not only young Thurgood Marshall, but Thurgood Marshall who of
course goes on to break down barriers, education -- Brown is well known, but break
down barriers in terms of everything, from equal pay for black teachers in this country to
making sure that restrictive covenants that once barred blacks, women, Hispanics from
buying homes in the best neighborhoods were no longer to be enforced by the
government. To understanding that there is a Thurgood Marshall who goes overseas to
argue about the treatment of black soldiers, a Thurgood Marshall who argues for the
equal rights of blacks to participate in the democratic primaries in this country.

There’s just so many cases; it seems unending, the work of Thurgood Marshall. But I just
wanted to share with you two quick stories that stay with me from this master storyteller.
One involves his time as a college student. Thurgood Marshall goes off to college, and if
you’d met him, I think all of you would say, “Oh, there’s no way that guy’s going to be
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the first African-American on the Supreme Court.” Because he was a prankster, a guy
who loved to do things like lead a cow up into the president’s office and feed it Epson
salt so it could have diarrhea right there. [laughter] The kind of guy who was always
walking around with a comic book jammed in his back pocket, smoking a cigarette.
When the football team was going off to play, he’d say, “Go out there and hit those guys
so hard their mamas feel it”, but you notice he wasn’t on the team. This is young
Thurgood Marshall.

And when the issue of having black people serve on the faculty at this all-black college,
Lincoln University in Pennsylvania, came up, he was opposed to it! Had no problem with
it. Thought that, well, you know, if you have blacks on the faculty, they might belong to
one fraternity or another, they might show favoritism to one group of students over

And then this older student comes back by the name of Langston Hughes, comes back to
finish his education at Lincoln. And Langston Hughes notices that at this school for
young black men there are no blacks on the faculty, and begins to make some noise about
it, and sees that Thurgood Marshall’s big man on campus and asks him about it, and
Marshall’s like, “Oh, you know what your problem is? You should have graduated years
ago! Don’t bother me. I don’t want to get involved with all this race stuff, all this politics.
Leave it alone.”

But Thurgood Marshall goes down to a cowboy and Indian movie with some of his
friends on a Saturday afternoon. And of course, black people were supposed to sit up in
the colored balcony. They decide, when the lights go down, there’s not going to be a
problem if they simply slip down into the lower seating area. And that they do, but the
usher notices, the boys are caught and they go running back to campus fearing they might
be arrested. And when they get back to campus, the word spreads almost instantaneously
and before long there’s a knocking at Thurgood Marshall’s dorm room door, and it’s
none other than Langston Hughes saying, “I told you so. You paid your money, didn’t get
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to see your movie. That’s what’s going on in this country. You’re busy with partying and
fraternity life. This is what’s going on in this country, and we don’t have any black
people on the faculty here.”

And I can tell you, as the biographer, that within a matter of weeks, Thurgood Marshall is
quoted in the student paper saying, “If we want black people to trust us to be their
accountants, their doctors, their dentists, and their lawyers, how can we not trust black
people to be our professors?” And then, working with Langston Hughes and his
sociology professor, gets a referendum going on campus to ask the students to petition
the administration to allow black people to serve on the faculty.

First time around, the fraternities do not join in with Thurgood Marshall and Langston
Hughes. The referendum is defeated. Langston Hughes graduates, Marshall comes back,
and when Marshall comes back, he gets it going again. This time, it’s a success. And the
first black member of the faculty comes on to the Lincoln faculty the year after Thurgood
Marshall graduates.

And I mention that because you can see such a rise in his political consciousness in that
moment. This is when he decides he really wants to be a lawyer. And of course, he goes
off to Howard University Law School, has a tremendous experience with the dean, a man
named Charles Hamilton Houston, where Houston is trying to create a cadre of young,
talented black lawyers, trained to be the best, to compete with anyone.

And there’s Thurgood Marshall as the top student in the school. But you know, he
wanted to go to the University of Maryland law school, but could not go because they
didn’t accept people of color. His mother has to pawn her wedding ring and her
engagement ring to pay for his first year tuition at Howard. He becomes the number one
student; mother doesn’t have to pawn anything by second year and third year. He
graduates number one in the school, but of course he’s a young black lawyer in the
aftermath of the Depression, trying to make a go of it. Not much work.
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And he gets a call from Dean Houston, and they go down south looking at the district
conditions of schools for black and white children because Dean Houston, working with
the NAACP, is trying to build a record of the fact that there is no “equal” in “separate but
equal,” that the facilities, the schools given to black children, are far more inadequate as
compared to those given to white children.

And outside a school, deep down in the delta in Mississippi not far from the Louisiana
line, Dean Houston’s inside. He’s got his notes; he’s got a huge camera taking pictures.
And when I say it’s a school, it’s not a building like we’re in here at the Kennedy
Presidential Library; it’s really a shack with some paper pulled over the top: no floors,
just dirt floors. When the rains come, the floors become thick with mud. And outside
Marshall is eating a sandwich, standing by their little car. These are two black men
traveling through the South, 1930s, so they’ve got sandwiches, bags of food on the back
seat, blankets and pillows because they can’t be assured that they’ll be allowed to stay in
any hotels or allowed to eat in any restaurants.

So Marshall is standing there. Here comes a little boy, an eight year old boy. And the boy
is absolutely mute, won’t say a word, and Thurgood Marshall is curious about this. But
he keeps staring at Thurgood Marshall, walking around the car. Thurgood Marshall says
he initially thinks this kid is just so impressed, never seen a black man like him, a law
school graduate, a man who owns a car. And then all of a sudden, the little boy points at
an orange that Marshall had been saving for his dessert. Marshall’s reluctant to give it up,
but he says, “Okay, go ahead, you can have the orange.” The kid doesn’t move. And then,
Thurgood Marshall picks up the orange, extends his hand and gives it to the child, and
says, “Eat it! Go ahead, eat it!” And the little boy takes the orange and bites at it right
through the rind. And when he does so, the juice goes spraying all over his face. Some of
it gets in his eyes and stings his eyes.
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Now the kid is upset and hurting and flings it on the ground, splattering it. Thurgood
Marshall goes ballistic. “What the hell is wrong with you, you stupid kid? You wasted
my orange!” And hearing all this commotion, here comes Dean Houston out of the school
to see what’s going on. He later says he thought some crazed segregationist was attacking
his young law student. But there, instead, is this little eight-year-old black boy, staring up
at 6’2” Thurgood Marshall. And he says to him, “Thurgood, what’s going on, what’s all
this screaming about?” Thurgood says, “Dean Houston, you don’t understand. This kid
took my orange, bit at it right through the rind like he’s a crazy person. Now he’s
throwing it on the ground and wasted my orange!”

Dean Houston looks at him and says, “Thurgood, I signed your law degree, but I don’t
think you understand what’s going on. You know, these roads we’ve been driving up and
down, have you noticed we don’t see any factories? Have you noticed we don’t see any
office buildings? These people are lucky if they can get a house, they can get a job, a
piece of land from the man in the big house. They are sharecroppers, Thurgood.”

He said, “Thurgood, have you noticed that when we get hungry at night, if someone’s
kind enough to take us in and we ask to use the bathroom, we have to go out back and
they tell us to watch where we step because they’ve got open troughs, right there, filled
with human waste.” He said, “Thurgood, for the people in this community, when they
want to educate their children,” and here he points at this shack of a school behind him.
He says, “They have to send their children to this school, Thurgood. And you’re going to
stand here and scream at this little boy? You’re going to scream at this child? Thurgood,
this kid doesn’t even know what an orange is. He doesn’t know anything about slicing an
orange or picking the seeds out of an orange or peeling an orange. Thurgood, he’s never
seen an orange. And you’re doing nothing but embarrassing me and humiliating that

Thurgood Marshall couldn’t believe it. He wrote home to his mom. He said, “Dear Mom,
Dean Houston used to say during law school that a lawyer who’s not a social engineer is
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nothing but a social parasite. And I didn’t understand it, because I wanted to be Lawyer
Marshall and make you proud of me, but today I met a kid who didn’t know what an
orange was. The kid wasn’t in school. And I think somebody should tell his story.
Somebody should be a voice for this child. The law should know the impact that
segregation has on this child.”

Thurgood Marshall, of course, goes back. He has tremendous arguments, defeats
segregation first and foremost at his neighborhood law school, the University of
Maryland, that wouldn’t have him, gets them to admit a black student. And it’s the basis
of that case that becomes the template, if you will, for challenges to segregation in
graduate and professional schools in Missouri and Texas and Oklahoma. And those cases
then in some ways inspire challenges to segregation in elementary and secondary schools
that lead to Brown v. Board on May 17th, 1954.

I mention all of that to you here today at the Kennedy Library because you should know
that when Thurgood Marshall died, Chief Justice Rehnquist was there; Vernon Jordan
was there, the famous lawyer; Bill Clinton was there. And they all spoke about what an
extraordinary man Justice Marshall was. They all spoke about the revolution that he had
brought about in terms of American life and American race. But I’m taken by the idea
that it was Bill Clinton who said, “You know, if it wasn’t for Thurgood Marshall, I could
never have been elected Governor of Arkansas. I could never have been elected President
of the United States.” That it was Thurgood Marshall, in terms of the laws that he
changed that made it possible for a black middle-class, for black people to vote, for black
people to be involved in the political process and change the segregationist atmosphere of
the South, the Democratic Party, and the nation.

And you know that Thurgood Marshall was buried not far from the eternal flame that
burns over President Kennedy’s grave. And today as we gather here -- and we gather with
the likely Democratic nominee being Barack Obama -- again it seems to me that in this
place and at this time, Thurgood Marshall lives; the power of Thurgood Marshall to
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transform the country by transforming its laws, by making the constitution real -- not just
for African-Americans, not just for women, not just for prisoners, not just for the disabled
or for immigrants -- but for all of us. Thurgood Marshall truly is the American son, born
on the Second of July.

Thank you very much. [applause]

SHERYLL CASHIN: Thank you so much, Juan, for that truly inspiring address. And
it’s such a pleasure, as a former law clerk, to get to talk about the boss. I had the great
privilege, as John said introducing me, to clerk for him in his last active year on the court.
And for me, he was an icon but he was also a real person, and you brought him alive for
me again today.

I would like to get the conversation started. We’re going to talk for about 45 minutes, and
then we’re going to open it up for questions. I would like to ask each of our distinguished
panelists just to reflect 100 years: Thurgood Marshall born in 1908; today it’s 2008. So
much has changed in 100 years in this nation. And I’d like you to reflect on what aspect
of change that you find most significant, and the role that Thurgood Marshall may have
played in that aspect.

NANCY GERTNER: You first, Lani.

SHERYLL CASHIN: You want to go first, Lani?

LANI GUINIER: That’s a really hard question, especially since I think, in many ways,
Juan has answered it. So I’ll pass on it too.

NANCY GERTNER: I’m struck by how the kinds of issues that Thurgood Marshall
fought for have become contested territory again. That’s the most troubling aspect of this.
When John Shattuck introduced me, he introduced me as an “activist judge.” And I could
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see the judges, my friends in the audience, having the hair on their arms rise up -- that
this is a pejorative comment when Marshall was an activist in reversing what had been
almost 100 years of institutionalized racism in the country. And the notion that anyone
could look back on his legacy and say that that was activist in a pejorative way is
extraordinary to me.

And today we’re fighting what can only be described as a retrenchment, an extraordinary
retrenchment, where students come to argue civil rights cases, or lawyers argue civil
rights cases, with no sense of what the laws were intended to do or what he knew in his
soul, what kind of things that he’d experienced. And civil rights issues become dissolved
in questions about minutiae -- standing and statutes of limitations and technical rules, and
none of the kinds of issues that he engaged with where judges are chafing at the notion of
engaging with the constitution at all and seem to do more than they should in terms of
ducking the kinds of issues that he took on. I mean, it’s a total reversal. We touted him
for what he did to 100 years of institutionalized racism, and now we forget that history in
the interpretation of what we do in the daily lives. And the kind of judge that Marshall
was is seen as pejorative.

SHERYLL CASHIN: Well, let me take up where you’re starting and ask you this, Lani.
As a former civil rights lawyer, do you feel like Marshall’s legacy is intact? With a civil
rights background, are you fearful for our future or optimistic about the things he fought
for ultimately enduring?

LANI GUINIER: Well, it’s an interesting juxtaposition because I was sitting next to
Nancy when John introduced her as an activist judge and she sort of recoiled. And I said,
“Why is that a dirty word?” And then you also talked about me as an activist, and she
said, “See, you’re one too!” And I said, “Yeah, but I’m not a judge, so it’s okay!”

And I really think that it’s important in talking about Thurgood Marshall, number one,
not to see him as the only activist on the scene. Thurgood Marshall was working with not
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only other lawyers, but he was working with ordinary people who were as courageous as
he was and whose sacrifice made his work possible. So that’s number one.

And number two, I think that the term “activist,” especially when juxtaposed with the
term “judge,” is doing a lot of work that in some ways has been targeted or tagged as
“bad.” When, in fact, when it’s done in conjunction with a social movement or with an
organized, mobilized constituency, is actually democracy enhancing as opposed to what
the epithet that judges resist, judges acting in a counter-majoritarian way, meaning that
judges are overruling what the democratically elected legislature may have done.

And the reason I want to emphasize this point is that one of the things that Justice
Marshall was about was challenging a very limited notion of democracy. So he was very
active in the challenge to the white primary in the South and in opening up opportunities
for all citizens to participate in the act of voting.

In that sense, you can’t say that what the Supreme Court or what he was doing was
actually overturning a majority’s decision in the legislature, because it was a falsely
artificially constituted majority. It was a majority that was only possible if you excluded
half of the people who were also in the polity. So I really think that we have to push back
a little on this question of judicial activism in order to understand that oftentimes, when
the legislature is acting, it’s not acting on behalf of “we the people.” It’s acting on the
behalf of a small minority of people who have gained power, in many ways, unjustly.

NANCY GERTNER: It’s also the issues made it to the court then, as now, when the
democratic processes have failed, in some way. That’s the other -- Brown v. Board of
Education took place because there was a situation that cried out for relief, and the
democratic political process was not addressing it. And so the judges were functioning as
we create an independent judiciary for, which is to protect the rights of minorities.
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So it’s not just that the political process is sometimes excluding half of the population,
but it was also that it was simply unable to deal with these kinds of issues. And it gets in
our lap! And someone has to win, and someone has to lose. And the question is where is
activism? Is that on either side? It’s going to be applied to either side of the outcome.

I think all that I was saying was that when he was practicing and when he was judging, he
had in mind the kinds of slights that Juan talked about. He knew what it was like to have
been nearly lynched in the South. He knew what it was like to have been excluded from
law school because he was black.

And so then when you raise issues, they’re in a context in which the reasons for the laws
are apparent. It’s now 50, 60 years later. And we’re raising these issues, but out of the
context in which they rose up. And people have forgotten why we have these laws and
why we have civil rights protections. That’s really what I was trying to get at. And so we
make these technical, formal ways of ducking these issues because we have lost a sense
of why they’re here.

SHERYLL CASHIN: Right. There’s no question that Justice Marshall brought that
human perspective to his judging, and I want us to get into that. But I don’t want the
audience to lose a point that Lani brought up, that often people associate Justice Marshall
with Brown v. Board, but … We were sharing this story in the airport, Juan and I.

The victory that he was most proud of, whenever you asked him -- He argued 32 cases
before the Supreme Court and won 29 of them and, although obviously there was a great
team of lawyers working with them, but he, prior to the civil rights movement, had,
through the law, dismantled many of the planks in transportation, voting, education. But
his favorite victory was this case: Smith v. Alright, the Texas white primary case. Would
you care to talk just briefly? You mentioned that, and I wanted the audience just to be
aware of what that case meant.
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JUAN WILLIAMS: This case is so interesting to me, because it just strikes me as so
distant. It sounds like something that could not have taken place within the last 100 years,
but imagine this: the Democratic Party in the State of Texas defines itself as a club -- a
private club -- and the private club is limited to white men, and they decide on the
candidate, the Democratic candidate for any office in the state, and blacks are excluded,
women are excluded, Hispanics are excluded.

And Thurgood Marshall, of course, challenges this as undemocratic and unconstitutional.
And the courts agree with him that this is a basic violation of democratic rights, and this
notion of an all-white primary in which you would have political opponents trying to --
what they called at the time “out-seg” each other, prove that one or the other was more of
a segregationist than the other -- broke down this process, won the challenge in the
Supreme Court, and by doing so, literally transformed the opportunity for black people,
for Hispanics, for women, to take part in the political process, to build black and minority
political representation in the country.

It was really a moment that I think, if you were - in my mind, I analogize it to Star Wars
and “May the Force be with you.” You’ve got to hit this one spot. And he hit it and he
exploded it. And it has had, to my mind, ramifications that live with us to this day. When
you think about the Kennedys and this place in the aftermath of the election of 1960, and
all the demands that were being put and the hopes being put into this young, charismatic
President Kennedy from the civil rights community, the immediate response that came
was, “Let’s get black people involved in voting, because otherwise the Democratic South
is made up of segregationists, and we have difficulty doing things like appointing activist
judges,” if that’s the language you like. “We have difficulty making appointments,
getting people confirmed. Even though we’re dealing with Democrats, we’re dealing with
these thoroughgoing segregationists.” So they started a voter education project. They
brought in people who were going to become foot soldiers in terms of the later civil rights
movement. But the idea was, “Let’s register black voters. Let’s take advantage of the idea
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that black people should be involved in the political process rather than being intimidated
and denied their rights to vote.”

And again it comes back, to my mind, to the very basic work done earlier by Thurgood
Marshall. But, as I say, it strikes me as unbelievable given what we’ve just been through,
that you would have a time that said, “Oh, yep. Democratic Party, private club, we set the
rules for our club, and certain people aren’t allowed in the door, much less to vote.”

NANCY GERTNER: But could I just correct one thing. I’m not saying that judges
should be activist in the pejorative sense. I’m saying that judges who are committed to
democracy are small-d democrats, and that they are people that we should revere as
opposed to people that we should critique.

JUAN WILLIAMS: I live in a strange land; I live in Washington, DC. And of course
the whole idea, for example, as proposed by John McCain and many Republicans is that
they want strict constructionists when it comes to judges that go on the court. They don’t
want people who are activists, people who would make laws. They want, simply, people
who will enforce the law properly. I think that’s at the heart and soul of some of the …

NANCY GERTNER: I know, but if you look at the John McCain justices, the ones that
he admires, or the conservative justices, they have overturned more legislative
enactments by the rule of the Supreme Court or by the rule of the judiciary than liberals!
So it’s not about overturning legislative majorities, it’s about what constitutes a
legitimate majority in a multiracial democracy in which women could not vote. Talk
about 1908! Blacks couldn’t vote, women couldn’t vote.

SHERYLL CASHIN: I want us to get to Justice Marshall and his model of judging.
But before we get there, I’d like to talk about what I think is the central theme of his six-
decade career, both as a civil rights advocate and as a Justice. And I think that central
theme, which comes out very clearly in your book, is that he was an integrationist.
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And he staked his life on the idea that if we could get America to embrace integration,
our problems with race relations would be solved, that talented people of color would, if
they had the right to go to the schools they wanted or be employed by people regardless
of race, that would solve the equality problem. And I’d be interested to know what you
panelists think about that, about that proposition, about whether he was right in staking
his … We had a lot of discussion about this four years ago, but whether that was the right

LANI GUINIER: Well, I think, Sheryll, if I could just give a little background to how
I’m interpreting your question. I think there’s a difference between integration,
desegregation, and equality. I don’t think they’re all the same. And so, to me, what we --
at least what I think this society should be promising to all of its citizens is equality:
equality of opportunity, equality that involves an invitation and an encouragement to
participate in making collective decisions. And when you have a society that is organized
around fundamental respect for the equality of all human beings, then integration will

I don’t think equality follows necessarily from a commitment simply to integration,
because we haven’t defined what integration means. Many times we say, “Well, this is an
integrated environment.” And what do they mean? There’s one black person sitting
there. My faculty will talk about, “We have a very diverse student body” or “a very
diverse faculty” and there’s still one black woman tenured professor at Harvard Law
School! So if that’s what we mean by integration or if that’s what we mean by diversity,
I don’t think that’s really going far enough. On the other hand, I’m certainly not an
advocate that we go back to segregation and that we separate people based on artificial
identities. That’s number one.

Number two, I think that there was something about the segregated South that we lost in
this pursuit of integration, and that was a sense of community, and a sense that we’re not
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just individuals who are fighting to succeed on our own, but that we are part of a
collective effort, a community that has a responsibility for all of its members. So that’s
why I think it’s a complicated question and that we can’t just use simple words to try to
capture this very profound and, I think, hopeful quest.

NANCY GERTNER: Given what he was facing, or what the country was facing, I
don’t think that there was any choice but to talk about integration meaning dismantling
the legal impediments to blacks and to women. What we’ve learned in the subsequent
years is that that is not remotely enough, that it’s not enough to take down the signs that
say “no blacks need apply.” If the educational system is flawed, if there have been years
of family members who have never had a decent job, it’s not enough to take down the

And it was the same thing with women: that issues with respect to sex discrimination
were enormously complex, and only part of the problem was the legal impediments. So
taking down the signs -- We had to take down the signs. We couldn’t legitimize the
issues in the way that we did. He had to proceed that way. I think the sad part -- and it’s a
lesson that we’ve had to learn; South Africa has learned, any country that has been
dismantling a legal structure of discrimination has to learn -- is that that’s not enough.
Equal opportunity does not follow, as day from night, from taking down the legal

SHERYLL CASHIN: Juan, did you want to add anything?

JUAN WILLIAMS: I wanted to say that there’s an intriguing moment when I was
talking with Thurgood Marshall. I had finished off, and as I’m sure Sheryll can tell you,
Thurgood Marshall could be rather a cantankerous fellow, and at times quick to take
offense and that kind of thing. So I’ve saved this question for last in these interviews I
was doing with him. And I say, “Justice Marshall, I just read a law review article in the
Howard University Law Review by a young man who makes the case that you made a
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mistake in Brown by focusing on integration; that by focusing on integration, you
introduced political concepts, political controversies that have really stalled the whole
notion that he says is key, which is equality of opportunity. If you had instead focused
that black children, Asian children -- whatever color children might be involved -- had
the very best schools, the best quality schools, the best quality teachers, if you had
focused in that way, you would have had more widespread political support going
forward and it wouldn’t have been as much of a cultural issue. And even to the point of
arguing, what’s the problem with a school filled with young black faces? Why can’t that
school be the absolute paradigm of excellence?”

And then I said to him, “You know, this young fellow, this Clarence Thomas, is making
the case that you, in essence, were defeating your own cause.” Now, we didn’t know that
Clarence Thomas was going to be his successor on the court! But Thurgood Marshall’s
response was so intriguing to me because his response was to look at me, as he often did,
as someone who knows nothing. It’s almost like somebody, if you’re at home watching a
movie and your husband and a friend comes in and says, “Oh, what’s this character
doing, what’s going on here?” And he looked at me like, “You just walked into the
middle of a movie! How could you ask me this question?” Because from his perspective,
he was not trying to create a Norman Rockwell painting of America with black children
sitting next to white children, etcetera, but he talked about the fact that school boards and
political structures were dominated by whites, that they were taking care of their children,
that those schools had much more in terms of funding and facility and higher pay for
teachers, all the rest.

And in order to take apart that structure, his argument was, “Black children, minority
children, have the right to attend the very same schools that your children attend, and
unless we have equal schools, your children could be attending schools that are inferior
as well.” And that this was a point of leverage and a point of law that he then used to
destroy the whole notion of segregated schools. And that this was why he needed to focus
on integration. To me it comes back to this idea that he was fighting against a structure of
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laws that enforced segregation. They enforced these culturally discriminatory practices.
They have the power of the law behind them.

It’s like, if you recall what happened shortly thereafter in Little Rock -- and we’ve been
here talking about Little Rock right here on this stage for the Kennedy Library -- you’ll
remember that it’s President Eisenhower that has to send the 101st Airborne in to defend
the rights of those nine black children who want to go to Central High School. So for the
first time, here’s the government defending the right of young black people to attend a
school of their choice, defending the notion of integration as opposed to small-town
sheriffs, the FBI and the federal government defending the right to continue the practice
of segregation.

SHERYLL CASHIN: I just wanted to add a little bit to that, because the year I clerked
for him there was a school case, and I had the privilege of being the law clerk working
for the Justice on that case. I think the case was called Dowl(?), and I think it was out of
Kansas. Don’t quote me on that, though.

But anyway, it was the early nineties, and it was clear that this was the beginning of the
end. This was a case in which, basically, the Supreme Court had the opportunity to tell
the lower federal courts it’s time to get out of the business of policing school
desegregation orders. And this is the first of three decisions in the 90s in which they
essentially said that. But they waited until Justice Marshall was off the course to really, I
guess, make that clear.

But it was very clear to me in my conversations with him about that case that integration,
for him, was a means for this end of equality. It wasn’t integration in and of itself. And he
felt so very strongly about that concern about the little boy. He didn’t tell me that
particular story, but we had a very painful moment where I don’t think I’m … Well, I
should be careful. I don’t think I’m really … Well, I’ve written about it, so it’s in the
public. It’s in Howard Law Journal so you can read it.
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But I recall a day in this law journal article about him feeling helpless to stop his
colleagues from undoing their commitment to this principle. He felt fervently that if the
federal courts gave up on integration in schools, we would return to very separate and
unequal schools. And that is happening all over the country today, and I think it’s very
sad, and I think he would be. He was sad then, and I think he would be sad today.

LANI GUINIER: Could I just say one thing, because Juan raised the issue of Little
Rock and Central High School? And I think the story’s a little more complicated,
especially if you look at Central High School and what was happening in Little Rock in

At the same time that those nine black kids were desegregating Central High School, the
doctors and lawyers of Little Rock had built their own high school, a public high school
in the western part of the city, and it was called Hall High School. And as the black kids
were coming into Central High School, the upper-middle-class white kids were leaving to
go to Hall High School.

So you had racial integration and you had socioeconomic segregation at the same time
happening. And I think that that’s a phenomenon that we have not really focused on, and
that we’ve not focused on it to our detriment, because not every white person in the south
was going to a good school. Not every white person in the south was well-educated. In
fact, if you look at the census data, you have a lot of poor whites who were very -- who
went to schools not as bad as the black schools, but went to schools that we would not
consider to be an educational environment.

And so, that’s my concern: when we focus simply on integration. And I don’t disagree
with anything that Nancy has said in terms that it’s a legal structure that needed to be
dismantled. But if that’s the way we’re talking about the problem, then I think we invite
the kinds of decisions that the Roberts court is giving us, which says, “Well, we’ve
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dismantled the legal segregation, so there’s nothing more for the court to do because
that’s all that the Constitution authorizes, and we don’t have any commitment to actually
insuring that all children -- whether they’re white, black, Latino, Asian -- have an
opportunity to enjoy a full educational experience.”

And I know Justice Marshall was committed to that as well, in terms of the case that was
brought to him in San Antonio v. Rodriguez. But we don’t talk about that case; we talk
about racial integration and not the importance of distribution of resources to all

SHERYLL CASHIN: Briefly, for our audience: I know what San Antonio v. Rodriguez
is, but our audience may not. So if you could just very quickly just mention his dissent in
that case. I want to turn next to …

LANI GUINIER: It was a case arguing that children have the right to equal educational
opportunity. And the court said that there was no such constitutional right.

SHERYLL CASHIN: That educational is not a fundamental right under the
Constitution. And he wrote an impassioned dissent in that case. And if you ever want to
get a sense of Justice Marshall as bringing his civil rights vision to his jurisprudence, read
his dissent in San Antonio v. Rodriguez.

NANCY GERTNER: It’s a different view of the role of the Constitution and the role of
law that he had then that we, that many of the judges and justices have today. It was the
notion that law is the means by which you create a just society as opposed to law creating
a constitutional minimum and it’s up to politics and policy and the political process to do
the rest.
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He had not a great deal of faith, reasonably, that a political process would be able to do
the rest. And I have some concerns along those lines as well. But really, this was the
notion that there’s a constitutional floor and that’s the best we can do.

LANI GUINIER: The constitutional floor, created by white male property owners, in a
society in which black people were the property that they owned, and white males who
didn’t own property and women were not participants and not part of the community of

SHERYL CASHIN: So here’s my question. Could somebody who openly espouses that
philosophy of education, could you get confirmed to the Supreme Court?

NANCY GERTNER: No! [simultaneous conversation] I’m sorry. Did you want a more
elaborate answer?

SHERYLL CASHIN: If Thurgood Marshall were nominated to the Supreme Court
today, could he get confirmed?

NANCY GERTNER: I actually think not. Not necessarily because of who he was, but
more because of political leadership. There’s a very interesting parallel. Justice Brandeis
also was maligned and had a very difficult time getting through the confirmation process,
and he ultimately was confirmed because President Wilson insisted and put his leadership
behind him. I think Marshall was confirmed because President Johnson put his leadership
behind him.

What you have, now, is judges who will become Justices, or even judges, only if they
don’t shake the tree, and only -- because no political leadership except for this --except
perhaps President Bush would stand behind a Roberts or an Alito. But in the absence of
that, then the people who make it through will be the people who are not controversial in
any way.
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In other words, it takes that kind of political leadership from the top in order to say, “I
know what this person believes in, but let me tell you, he will be very good. He will be
not good for my side, but he will be someone” -- How shall I describe it? – “He will be
fair.” It’s very much like the way we select juries. We don’t pretend that jurors don’t
have opinions and didn’t live. They’ve been through life, they have opinions. The issue is
are these opinions that will be struggled with? Are these opinions that they can try to
struggle with in terms of what the cases in front of them? And we select judges, and we
can’t pretend that they haven’t lived and don’t have opinions.

So the issue is would you struggle with a Thurgood Marshall? Would there be political
leadership to say this man contributed something extraordinary to the bench, and he
would be a fair judge, notwithstanding the advocacy of his past. But I don’t think we
have that kind of leadership today, or at least we haven’t had that kind of leadership.
[simultaneous conversation]

Candidly, I owe my confirmation to Senator Kennedy, period, who said, “I want someone
like her on the bench.” Otherwise, it would not have happened. But I’m prepared to
throw my name in the ring for the Supreme Court. [laughter and applause]

SHERYLL CASHIN: That gets me to another question I wanted to talk about. In your
book, Juan, you tell this powerful story, and in your opening comments you tell this
story, too, about how Thurgood Marshall’s consciousness was raised to the point where
he accepted and embraced the idea, learned from his mentor Charles Hamilton Houston,
that a lawyer is supposed to be a social engineer. That that was what you were supposed
to go off and do with your law degree. You were supposed to be a social engineer. You
were supposed to bring your passion to bear and your skills to bear to improve people’s
lives. And as a law professor, and you know this, unfortunately, a lot of students … Well,
I don’t know. I wonder what all of the members of the panel think about the possibilities
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for lawyers today, to be modern-day Thurgood Marshalls and affect change through the

NANCY GERTNER: The financial situation is different. Students come out of law
school with an enormous number of loans. I try to talk to my students and say, “Create
your own law firm, create a public interest law firm. That’s what we did. Volunteer for
the ACLU. You can create a life in which you use these skills for social change; you can
use these skills to represent the disenfranchised.” And I’m invariably told, “Well, I will
do that after I pay off my loans. I will do that at some later time.” I mean, it’s almost as if
Marshall is a historical icon and not a real example, and I’m saying this coming from
Yale Law School, which is a pretty progressive place.

LANI GUINIER: Well, it’s interesting, because I have a former student who did a study
of the black students at Harvard Law School, and she was interested in what triggered
their public interest or social justice commitment, if anything. And she found that about a
quarter of the black students came to Harvard Law School with a commitment to social
justice and they graduated from the law school with that same commitment, and about
50% came in with the idea of making money, and they graduated from the law school
with the idea that that’s what they were there to do. But there was another 25% percent
that really could have gone either way. And that the law school really didn’t do enough
to encourage students to see that this was a worthwhile kind of financial sacrifice, that it
was balanced by the great rewards that were psychic and interpersonal from actually
doing the kind of work that you felt passionate about rather than doing the work because
you were getting a good, hefty amount of money to pay back your loans.

And that this was the group that we really need to focus on, is that 25% percent. And I
don’t think it’s just the black students; I think the figures are pretty similar for white
students. That there are 50% who come in, they want to be corporate lawyers and this
will give them the opportunity to do so, and they’re … Maybe not even 25%, but a small
percentage that are committed and, no matter what you do, they’ll stay committed.
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But there’s this quarter, this quarter of the class that is open to thinking about the role that
Thurgood Marshall played. They’re open to thinking about innovative ways of being a
lawyer. And some of them may be skeptical that litigation, given the composition of the
federal judiciary, will offer the same opportunities today as it once did, but that doesn’t
mean that that’s the only way to be a lawyer. So I do think that there’s more that we can
do to renew that faith with the kind of passion and commitment that we saw in Thurgood

SHERYLL CASHIN: Juan, I think it’d be useful, at this point, for you to reflect a little
for the audience. I really enjoyed the stories Justice Marshall would tell me about how he
hung out a shingle in Baltimore, but how really hard it was to try to make a living as a
lawyer. But how he sort of became a justice lawyer, but also his money struggles. Can
you just reflect a little bit on that, just if students in the audience are listening? It’s never
been easy to be a justice lawyer.

JUAN WILLIAMS: No, and in fact, what was key for Thurgood Marshall was when he
got out of law school, as I said, he really wanted Charles Hamilton Houston, his dean
who was becoming, then, head of the NAACP legal defense fund, to hire him and bring
him up to New York. Couldn’t get that job opportunity. There were older black lawyers
in town who pretty much viewed him, again, as a challenge to the cases that they were
already dealing with.

He got some work from people who asked him to look into racial cases in the area, cases
where black people were being unfairly judged, arrested, and tried. And there was
Thurgood Marshall getting involved, time and again, for no money or a little money, and
that Thurgood Marshall is the one that then goes out and finally persuades Charles
Hamilton Houston to bring him up to New York and get involved in so many of the civil
rights cases.
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So what you see is a young man who is struggling. In fact, it’s the publisher then of the
black newspaper in Baltimore who brings Thurgood Marshall on, who gives him not only
a stipend, but gives him access to people in key cases dealing with race in the Maryland-
Virginia area, and leads him, then, I think, more and more into the arena of civil rights
law, because he wasn’t making it as a private practitioner.

And I’m struck by the idea that, if you think about Thurgood Marshall not only as a
private lawyer -- and we’ve all talked about he changed the law in terms of everything
from transportation to politics, and in (inaudible) white primary to ending the use of
restrictive covenants and parks and all the rest. But it’s also Thurgood Marshall who, on
the Court, is involved in, arguably again, what you might call activist law because he’s
involved in Roe v. Wade, the abortion case; he’s involved in Bocky, the affirmative action
case. He’s involved in Pentagon Papers, the First Amendment press freedoms case, as an
incredibly critical vote.

But I’d think that Marshall would resist the idea that he is somehow the activist. Instead,
he would say he is looking for ways in which you can use the law to achieve change, to
make this country more representative and to give voice and opportunity to more people.
And for him, I think that would have been an important distinction. It wasn’t a matter of
somehow confronting the law, it was a matter of making sure that the law was an
instrument to achieve the justice that’s promised to us all.

And I will just note here that I think that it was Chief Justice Earl Warren who said to
Marshall in the aftermath of the Brown case -- He says, “You know, I wish that Native
Americans had a Thurgood Marshall.” And you think about what Thurgood Marshall
then does, is he sets up, with the legal defense fund and his leadership there, a paradigm
by which you get Mexican-American legal defense, you get gay and lesbian legal
defense, you get children’s defense funding and all those kinds of legal actions.
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I think to this day what he did was set up a structure by which lawyers on the outside
looked for ways in which they could use the law to not only protect existing rights, but in
some cases, to advance the rights of those who have been oppressed or disadvantaged in
the larger society. And to this day that model remains, and I think retains its potency.

NANCY GERTNER: I’m not sure that I think that that model retains its allure. I mean,
I think that there are two ways in which it hasn’t. One is the sense that that was then and
this is now. For women’s rights lawyers and discrimination lawyers, it’s almost as if,
well, that was fine when there was this institutionalized racism.

Things are more complicated now; there are competing interests, this notion of individual
rights and representing particular groups actually dissolve the polity, made groups
compete against one another. And things are far more complicated, and the role of a
lawyer like Thurgood Marshall begins to look like an anachronism.

There are some exceptions to that, which is the Guantanamo lawyers, some immigration
lawyers, sometimes some criminal lawyers in death penalty cases where you have a sense
that what they are doing is doing it for all of us. We should have the sense that these
individual rights groups are doing it for all of us, but I think the public perception is that
it is insular and not in the public interest. And that’s part of the reason, I think, why
people don’t go into these fields.

SHERYLL CASHIN: I want us to get to the audience questions.

LANI GUINIER: Just a very quick point to emphasize what Nancy has just said. I think
you’re absolutely right and I also think that it comes back to my first comment, that
Justice Thurgood Marshall was successful not just because he was a brilliant lawyer, but
because he was part of a social movement.
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And the movement that was lead by Martin Luther King and Fannie Lou Hamer and
other people that are not quite as well-known gave him the wind at his back. I think, now,
the problem for many lawyers when they are trying to litigate their way to freedom is that
they have no wind at their back and they have no constituency that’s at their side.

SHERYLL CASHIN: It’s time for audience questions. Could you come to the
microphone? You do want people to go to the microphone, right? And while people are
doing that, I’ll say I will agree with you that it’s so interesting how, if you read the
history about Brown, Brown didn’t really have teeth; the Court couldn’t put teeth into it
until you had a social movement. It really wasn’t until like 1968, after a successful social
movement, that the Supreme Court starts and says, “We mean it, you must desegregate.”
So absolutely. You have to have …

JUAN WILLIAMS: Let me just offer a different point of view, to kind of be the skunk
at this garden partyr. I think Fannie Lou Hamer and Dr. King come, in large part, because
of the work done in the courts by the likes of Thurgood Marshall. And at the time that so
many of the cases that we’ve talked about here today, including Brown, white primaries,
etcetera, are done, there is a fledgling movement. It doesn’t have the power of the
movement that we know during the late 50s and 60s, especially when you get the student
activists involved. So what you see is …

LANI GUINIER: But why did the student activists get involved in the early 60s?

JUAN WILLIAMS: I think, in large part, because of the work done in the …

LANI GUINIER: They were frustrated with the Supreme Court for not following
through on all deliberate speed.
[simultaneous conversation]
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JUAN WILLIAMS: I just wanted to make this point, though, that I think that Thurgood
Marshall and the Court, and the work in the Courts, really generates that. And he is able
to, I think, inspire people with the idea that -- and this is why I think African-Americans
remain so patriotic -- that the courts and the Constitution if they live up to their full
promise, will serve your ends.

SHERYLL CASHIN: Yes, young lady?

AUDIENCE: Hi. My name’s Nicole Glenn(?), and I’m in my second year at a law
school. And I’m currently working in the Criminal Justice Institute at Harvard under
Professor Ron Sullivan and Professor Ogletree. And as an upcoming black attorney, I
hear you guys talking about Thurgood Marshall and Charles Ogletree. They had issues to
grasp, when they were coming up [simultaneous converseation]. And I just feel like now
there’s no defined issues for black law students or even white law students to grasp, and
it’s no longer a fight or a struggle for African-Americans. And I just feel like now it’s
mostly a socioeconomic struggle. And so I’m trying to figure out how do I grasp onto
these issues in the community, because there are a lot of them, but they’re just not as
defined and they’re not in the forefront, like integration and segregation. They’re not as
big. And so I just wanted some advice from you guys of what are the big issues right now
that we’re facing, and something that I can actually grasp on to and try to fight against.

SHERYLL CASHIN: There are a lot of them. One issue that I think needs a lot of
attention is the over-criminalization of black males. My friend and colleague, James
Forman, spends a lot of time in his writing and research on this. But that disproportionate
criminalization, the criminal justice system, that’s an area that needs, that would benefit
from a lot of advocacy. The problem, though, is I’m not sure what … You’re not going to
solve that problem through litigation. That’s one area that I think is very defined and very
problematic and needs attention.
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NANCY GERTNER: I think it’s also clear that there’s no big doctrine to go towards. In
other words, no clear statement of X or Y, because legal impediments have been
removed. I think the only exception to that, by that way, is gay marriage, which was a
statement which also fed into a movement and the movement is now feeding back into
the courts. I think that’s a different issue.

But certainly, with women’s rights and gay rights and racial issues, there are no big …
there’s no white primary, etcetera. It is now dissolved in the thousands of cases that are
brought to federal courts, for example, claiming civil rights claims, making civil rights
claims, which we deny on some re-judgment, because these doctrines have become so
hyper-technical and so formalistic that lawyers … And lawyers have not been trained to
step back and say, “Listen, if someone is called the N-word, that’s not a stray remark.”
There’s literally a doctrine in employment law about “stray remarks,” which seems to
have forgotten what the context of racism is. And so discrimination is no longer … To be
sure, there’s not a law that says if someone calls you that you can’t recover. There is
simply a body of law that invariably leads to people losing these cases.

In addition, on the criminal side, there’s not a law that says black people are picked up
for minor traffic offenses more than anyone else. But that is a fact, and that then feeds
into the sentencing of black people in court because then they come with records. So
you’re talking now about issues that are not broad doctrine. You’re talking about the
application, but the application has the same net effect, or a similar net effect as we have
seen before. So there’s lots to do. It’s just it may not be a Supreme Court case with your
name on it.

SHERYLL CASHIN: For example, just briefly, like the ACLU has this project where
they’re dealing with the … there’s this issue now about expelling and expulsions and how
the criminalization going down to the grade school level in the way that children of color
are getting treated. And they have a special project where they’re working on that. It may
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not be a classic civil rights model, but there are issues out there like that that are crying
out for advocacy.

LANI GUINIER: Well, I agree with what Sheryll and Nancy have both said. And I
want to just emphasize: part of this is a challenge to legal educators because the model
that we have used for social change is a model that works through the courts using
litigation around an issue of rights. And that may not be the model that is needed right
now, although lawyers are still very, very important advocates in trying to make this a
more just society. So one is to rethink the role of lawyers. And there’s an organization
called Advancement Project, that I would urge you to contact in Washington DC or Los
Angeles, that is doing a lot of very innovative lawyering that doesn’t center around
litigation. That’s number one.

But if you are committed to thinking in terms of rights, one of the most important issues
that the Supreme Court has decided this term is that voting is not a fundamental right in
our Constitution. And we may be going around the world trying to make the world favor
our kind of democracy, but if the rest of the world were to know what kind of democracy
we really had, they might run the other direction! Because this country does not believe
that all of its citizens have a fundamental right to vote. It is not in the Constitution. It is
not an affirmative right. It is something that we protect against discrimination, but we
don’t affirmatively grant it to people and say, “If you are a citizen, you are guaranteed the
right to vote, and we will protect that right.” So if you’re interested in rights, getting …
and I think if there were a fundamental right to vote in the Constitution, it would affect
felon disenfranchisement, which is a big issue related to what Sheryll was talking about.
If you have a mass incarceration of a population, and then that population once they
served their time is not allowed to vote, you’re basically taking this group out of the
community of consent. And all of the people who live in the geographical neighborhoods
that they live are suffering because people in that community are not in a position to
participate actively in the political process. So it’s a disenfranchisement not only of the
ex-felon, but of his or her neighbors.
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JUAN WILLIAMS: Well, I don’t know what case that is, that the court had ever said
that people don’t have a right to vote, they don’t protect the right to vote. But let me just
say that in the conversations with Justice Marshall, I asked a question like the one that
you asked us here this evening. And he said to me that if he was a young lawyer again, he
thought his focus would be on the rights of children. Because he made the point to me
that children have almost no rights. They certainly don’t have the right to vote. And that
if you think about a child who has the unfortunate circumstance too often in our society
today of being born to a single mom, much less to outright bad parents or people who
don’t have means or whatever, that that child, basically, is at the beck and call … The
fates take over. And most often that child ends up in bad schools, if not foster care, with
no rights -- juvenile justice system, again, where the child has no rights. But the key issue
here, for my mind, would be the continuing disparities in terms of education. And we
have so much effort taking place in the country now in terms of attempts at education
reform. We’ve been through arguments about how schools are funded and the like. But
we still have tremendous problems, especially educating young minorities, young blacks
and Hispanics in this country.

Seems to me that here is an opportunity, again, for a revolution. I think the revolution is
already somewhat started because there is such a crying need for improvement in this
area. But to my mind, that is -- as a visitor here, having just heard your heartfelt question,
I would say that’s where I would be looking, is to try to improve the quality of education
for all American children.

I mean, clearly, we’ve got immigration issues that I think are compelling. We’ve got civil
liberties issues that are compelling, especially in the aftermath of 9/11. To my mind, the
ongoing issues dealing with immigrants, just compelling. So I think there’s a range of
them. It’s a matter of what fires you up, what gets your heart rolling. But I don’t think
it’s a matter of shortage of issues. It’s what you feel passionate about. And I just sense
from the question is that because it’s not back of the bus, which is just so glaring, you’re
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having a hard time getting traction there. But to my mind, and I think -- not to speak for
Thurgood Marshall when he didn’t say something -- but I think that the whole notion of
rights of young people, and to my mind, extending it to education, is the forefront of that
revolution in this time.

SHERYLL CASHIN: Let’s try to get the next question.

AUDIENCE: I’m concerned about people having to get an ID to be able to vote, and I
wondered if there was any background or history of what (inaudible) might have felt
about people being denied. 80 year-old nuns not being able to vote because they didn’t
have a federal ID. I’m not sure if that was anything [simultaneous conversation].

LANI GUINIER: Right. In Indiana, where they were actually in their 90s and they were
part of a convent where someone who was also a nun was working the polls. And she
knew that, and still could not vouch that they were who they said they were because they
did not have driver’s licenses. They could not, therefore, get themselves to the
government site, which, I think there may have been one or two in the relevant area, to
get themselves an ID.

AUDIENCE: Was this recently?

LANI GUINIER: This was something that just happened in the Indiana primary. But
the case that was decided was decided April 28th of this year. And basically the Court
declined to use strict scrutiny in examining the voting laws of Indiana. And strict scrutiny
is the kind of tough-minded look that the Court gives something that is considered
fundamental to the rights of citizens in a democracy. And they pulled back from that and
started to think about voting as some kind of balancing test. And allowed the State of
Indiana to go forward with this, what I think of is draconian requirement. Draconian,
because if you’re going to require people to have an ID, then give it to them! Make it
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possible for them to have an ID. Don’t use that as a weapon in order to disenfranchise

JUAN WILLIAMS: Well, just again, to continue my role as the skunk at this party, let
me say that voter fraud is …

LANI GUINIER: There was not a single reported case of voter fraud in Indiana. Not
one! [simultaneous conversation]

JUAN WILLIAMS: Let me just say that the Court was trying to assert the notion that it
was not draconian or unreasonable to ask people, if they want to vote, to have some ID.


JUAN WILLIAMS: It would be a government-issued identification.

LANI GUINIER: That’s more than “some ID.” Somebody could come in and have their
gas bill, they could have [simultaneous conversation].

JUAN WILLIAMS: The idea was that to prevent people who were not [simultaneous

SHERYLL CASHIN: I have to interrupt this very interesting conversation. Let’s get to
the next question.

AUDIENCE: My question might not be nearly as controversial. My question’s
addressed to Mr. Williams. Prior to moving to Massachusetts, I taught and lived in the
very neighborhood that Mr. Marshall grew up in, Division Street in West Baltimore. And
the Division Street that he grew up on in the 1920s is vastly different from the Division
Street near Druid Hill Avenue and Pennsylvania Avenue today.
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My question is two-part. One, if you could share from your biography any anecdotes that,
as a teacher, I might be able to use to help students to Inquire as to how might I be able to
rise up into such a position as Mr. Marshall did. And then my second question is, to your
knowledge, do you know if there’s -- we’re in a building here that is a repository of
information and ideas, and to my knowledge, Division Street has none. There’s no: “This
is the childhood home of Thurgood Marshall,” and so on. Is there any plans for anything
like that, given how monumental his service has been to the country?

JUAN WILLIAMS: There is a historical marker on the house on Division Street. There
is a historical marker. And then, of course, there’s that statue behind the federal
courthouse near the inner harbor. That’s always interesting: why is it behind the
courthouse instead of in front of the courthouse? And there are some standing things that
happen at the African-American history museum in Baltimore downtown not only in
terms of Thurgood Marshall, but ongoing issues in terms of discrimination and lack of
opportunity and calling attention to them.

In answer to your first question, it reminds me a little bit of what the young woman ahead
of you asked about the law. To my mind, what goes on in Baltimore City schools … The
school system is being hollowed out because middle-class black parents are getting out as
fast as anybody else because they don’t like the quality. And you see the evolution and
everything from charter schools and the like, people looking for options. That, to me, is
for young Thurgood Marshalls, for people who are coming up. They have to struggle to
see the possibility of being Thurgood Marshall because it’s so hard. When Thurgood
Marshall went to school, his mother was a kindergarten teacher; his Uncle Cyrus was a
teacher at the one high school for black students in Baltimore City. He had a sense that it
was possible. I mean, he didn’t doubt his intellect. In some ways, it was a matter of
combating the limits that the society was placing on him, not his own limits. And today, I
think we have, for the young people, introduced such doubt and lack of opportunity that
they oftentimes don’t see themselves as having a future or having a stake in our society.
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They become a separate society in a different way than the segregated society that we
would think of earlier.

But when I talk to young people like this about being the next Thurgood Marshall, I tell
stories about how, in so many ways, Marshall’s education took place at the dinner table,
arguing with his dad -- but again, you have an intact family. He went into the courtrooms
of Baltimore Cities. He and his dad would use it as entertainment. (I’m sure they would
have loved your courtroom. And they would go in there and they would listen to the
lawyers and recreate the arguments and say, “This lawyer’s not so good. This one is.”

Thurgood Marshall tells the story of being in a classroom in high school that overlooked
where prisoners were brought into a local precinct and hearing how they were beaten and
forced into making confessions that would result in longer jail terms and thinking to
themselves, “These people are foolish; they’re essentially violating their rights.”

And then he also, because he would act up all the time in school, one of his punishments
was to learn to read the Constitution. All these things. You think about it in terms of
creating a character, in terms of creating a person. You see this person being created. He
was on the debate team, both in high school and at Lincoln. There’s a famous debate
team, in fact, that came up here to debate. It was the first time Harvard had ever debated
against a black school. All of that, and you think, “Well, this is how you create this

And when you talk to young people, you say, you know, you’re fighting … No matter
what quality the school is, you can go and visit the courts, you can get involved in terms
of debate. In fact, debate is a huge popular activity in terms of the Baltimore City
Schools. So you can get involved in the debate. You can, I think, try to move beyond
your community and see opportunities that exist, instead of, to my mind, getting locked
into these very negative images of black people that are on TV today and in the popular
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NANCY GERTNER: In one sense, it is tougher today than it was when Thurgood
Marshall was growing up, ironically even though this institutionalized racism structure
has been dismantled. And I’m reminded of a phrase that a woman student in my class
used when she talked of that today there was the opacity of discrimination.
Discrimination is opaque. You can’t put your finger on it; it’s not a law: “I can apply for
any job, I can be President of the United States. How come I’m not getting there? And
that’s because the complex of things that are keeping me down are in part me, but also a
much more complicated social structure, and if I begin to blame it exclusively on

So this is actually an answer to the question that the young -- the previous speaker -- was
raising, which it is more complicated. But it’s precisely because it’s more complicated
that that case has to be made. One of the most wonderful things of preparing for this
panel and reading some of Thurgood Marshall’s opinions is that so oftentimes you think
that what he’s really saying is, “Get real. Get real. Let me tell you how this is actually
going to operate on people and how people are actually going to experience this rule.”
And I think that’s what lawyers ought to be doing today.

SHERYLL CASHIN: We have time for one more question.

AUDIENCE: I don’t know if it’s much of a question, but Mr. Williams, I’d want to call
your attention, the panel, to this latest case of voter fraud in the history of this country,
and it was institutionalized in Bush v. Gore. The activity that went on by the Secretary of
State’s office in Florida.

JUAN WILLIAMS: I don’t think there’s anybody here who wants people who have the
right to vote to be denied that. But it’s problematic, I think, when you hear one-sided
presentations of the facts, and when you don’t -- for example, the characterization of the
Court as saying, “We’re going to deny these -- it’s not a big deal to deny people the right
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to vote.” I just don’t think that’s reasoned, especially given we’re trying to have here an
honest discussion of law and facts in society.

AUDIENCE: Well, I think that was an interesting point you just made. But again, Bush
v. Gore has led to a legal (inaudible) and the rolling back of all the things that Justice
Marshall and Justice Warren and so many other people fought so hard for. So let’s be
honest about it, that there is indisputable fact that the Secretary of State brought in
Republican hacks to certify the absentee votes of the Republicans and rip up the votes of
Democrats. That’s not in dispute.

SHERYLL CASHIN: We want to end this on a positive note about Justice Warren. You
should have a chance to defend yourself, though, because I think he mischaracterized
what you said, to be honest.

LANI GUINIER: Well, I don’t think he’s read the opinion, number one. And number
two, in terms of voter fraud, the instances of fraud occur. I don’t know anything about
what the gentleman is alleging, but every recorded instance of fraud involves
administrators of elections, not voters impersonating other voters.


JOHN SHATTUCK: Sheryll, I think this is a conversation that Justice Marshall would
have loved. In all seriousness, we’ve had a remarkable discussion about the meaning of
justice and equality in our society today and about the role of the judiciary and judges.
Judges have many different roles, and I think you’ve heard about them. And the Kennedy
Library is just very, very grateful that all of you have given us this special gift on the
centennial of Justice Marshall learning about his legacy and looking at the various ways
in which it can be interpreted. So I want to thank Juan Williams, Judge Nancy Gertner,
Lani Guinier, and Sheryll Cashin. [applause]