The Volokh Conspiracy

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Stephen Carter Writes About The Oral History of Justice Thurgood Marshall

"If I'd known I was going to live so long, I would've never given up smoking and drinking."


Stephen Carter published in the New York Times Magazine a remarkable story about his former boss, Justice Thurgood Marshall. Carter reveals that he recorded an oral history with Justice Marshall that remains restricted.

And during the last year of his life, the two of us spent a great deal of time together in the smaller upstairs chambers assigned to him upon his retirement, because he had asked me to serve as the interviewer for his official oral history for the Federal Judicial Center. Our conversations lasted countless hours but also all too few. The recordings remain sealed, but even outside the audio taping, we talked. Or, rather, the Judge talked; I listened and learned. . . .

The oral history remains sealed — an effort to comply with the Judge's wishes. But I think I can fairly say, without violating my confidentiality agreement, that no earth-shattering disclosures are locked away. When the recordings and transcripts are opened to researchers, the curious will find only more evidence of just how extraordinary a human being Thurgood Marshall was. . . .

One last pinprick: When, after his retirement, the Judge invited me to serve as interviewer for his official oral history, I called the chambers and asked why. "Because I like to live dangerously," he said. . . . .

We never completed the oral history. Although we strove mightily and wound up with more than 20 hours of tapes, we knew we were racing a clock neither of us dared mention. Yet even as age and illness stole the Judge's vitality, in our meetings he remained as cheery as ever. Whatever he might have shared with his intimates, each time I walked through the door of his office, he greeted me with the same twinkle in his eye. On the rare occasions when I ventured to ask after his health, he would turn the question into a joke: "If I'd known I was going to live so long, I would've never given up smoking and drinking."

But although he was tired and would occasionally grimace in obvious discomfort, he was, for the most part, the same peppy and optimistic man I remembered. It was as though he was determined through force of will to teach those around him even how to deal with impending death.

Our final sessions came in the fall of 1992. We had finished the material on his career before the Supreme Court and were starting on his life as a justice. We were supposed to resume the interviews in January 1993, the week before the inauguration of President Bill Clinton, where the Judge had promised to swear in Vice President Al Gore. Then a call from Marshall's chambers postponed our next meeting: He was a little under the weather.

For once the Judge had broken his word, because he didn't make the inauguration either. He died a few days later. Before his funeral, he lay in state in the Great Hall of the Supreme Court building, and we who served as law clerks over the years took turns standing watch at the coffin as the public filed past, mourning the passing of a giant.

The Supreme Court has never been the same.

There are so many wonderful stories and anecdotes. Take the time to read it.