U.S. Supreme Court Justice Elena Kagan

On good days, the late Supreme Court Justice Thurgood Marshall would call his then-clerk Elena Kagan “shorty.” But when Kagan messed up or disappointed her boss, he would call her “knucklehead.”

Speaking Tuesday night at an event marking the 50th anniversary of Marshall's ascension to the high court, now-Justice Kagan and three other former Marshall clerks offered their recollections of their year with the man who has been hailed as the most important lawyer of the 20th century. He died in 1993.

“His voice in my head never went away,” Kagan said, recalling her stint as a Marshall clerk from 1987 to 1988. “You couldn't survive a year in his chambers without realizing that there were things you know nothing about.”

A highlight of the program, sponsored by the Supreme Court Historical Society, came when Kagan described two cases she worked on during her year with Marshall. Former clerks don't always publicly discuss details of internal deliberations, but Kagan was at ease doing so, providing a rare window into how she may handle cases as a justice herself.

The first case was Kadrmas v. Dickinson Public Schools, a 1988 equal protection challenge claiming that a fee imposed by some North Dakota school districts for bus transportation disfavored indigent students. “It was the case he was most passionate about” that term, Kagan said.

Kagan recalled telling Marshall that it would be hard for students to win, because “indigency is not a suspect class, and education is not fundamental right,” which meant that strict scrutiny would not be applied in the case.

“He looked at me as if I had lost my mind,” Kagan recalled. It was one of those “knucklehead” days, she added.

As it turned out, Kagan was right. The court ruled 5-4 against the equal protection argument. But that did not keep Marshall from dissenting. Kagan wrote a draft of the dissent, but each time she submitted it to Marshall, he told her to “write it stronger” to reflect his “passion and disgust” at the bus fee.

The way Marshall handled the other case Kagan mentioned was “more surprising,” she said. In Torres v. Oakland Scavenger, involving one of 16 plaintiffs in an employment discrimination case, Jose Torres' name was inadvertently omitted from a notice of appeal and the lower court ruled that was a jurisdictional bar that excluded him from the lawsuit.

“All of the clerks thought this was an easy case,” Kagan said. It was “just a secretarial mishap” that should not deprive Torres from the claim. “What a crazy thing.”

But surprisingly, Marshall thought otherwise and ended up writing the 8-1 majority ruling against Torres. “The rule of law and playing by the rules was to him the most important principle,” Kagan said. From his own experience as a civil rights lawyer, Marshall believed in the importance of playing straight with the rules, even if sometimes “it doesn't come out your way.”
Kagan added, “I don't think he convinced a single one of us, honestly,” but it was “a powerful lesson.”

Also on the panel Tuesday night were Senior Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit, a 1974-1975 clerk to Marshall; Harvard Law School professor Randall Kennedy, who clerked for Marshall in 1983 and 1984; and U.S. District Judge Paul Engelmayer of the Southern District of New York, a 1988-1989 clerk to Marshall.

All spoke of the importance of their year with Marshall in their own lives and careers, not just because of his legal influence, but also because of his storytelling and sense of humor. Marshall's widow, Cissy Marshall, was in the audience, as were their sons, Thurgood Marshall Jr. and John Marshall.

Engelmayer recalled a time when the justice took his clerks to a seafood restaurant for a holiday lunch in Washington. Others in the packed restaurant recognized Marshall and soon, “everybody just got up and stood for him” to honor his presence. “This was clerking for a living legend,” Engelmayer said. “This is the magnitude of the man. This is what he has meant to our country.”