The Massachusetts Supreme Judicial Court - Where Political And Judicial Accountability Are Two Very Different Things

Thursday, March 1, 2007 - 01:00

The Editor interviews the Honorable Margaret H. Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts.

Editor: Chief Justice Marshall, you have had an interesting odyssey from South Africa to Massachusetts. Would you tell our readers something about your background?

Marshall: I was born, raised and educated in South Africa at a time when the apartheid system was still in place. If you had asked any of my teachers in the tiny village where I grew up if I would become a Chief Justice of an American state, they would have thought the question astonishing. A critical turning point occurred when I was able to spend a year in Wilmington, Delaware as a high school exchange student. Although I did not fully realize it at the time, it was the experience of freedom - freedom of people to criticize their government in newspapers or on television, freedom to listen to and engage in political debate, freedom to see democracy actually working - that changed the course of my life. At that time, the press in South Africa was heavily censored. We had no television, not because South Africa was technologically backward, but because the government curtailed all outside influences.

I am reminded of something that Molly Ivins, the irreverent newspaper columnist and commentator said about growing up as a white woman in the South. She said that once she learned that she had been lied to about race, she began to question everything. When I returned to South Africa from the United States I brought with me a sense that I had to question everything.

I became active in the student movement against the apartheid government. This was at a time when Nelson Mandela and other leaders of opposition political parties had been sent to prison, and the student movement - as is so often the case in totalitarian countries - had assumed an important public role in opposition to the government. Being white and a woman afforded me a certain degree of immunity from persecution. But I did understand that the activities in which I was engaged were dangerous. When I was given an opportunity to study art history abroad - at Harvard - I leaped at the offer. Later I decided to remain in the United States. In 1973 I matriculated at Yale Law School.

Following graduation from law school, I began a litigation practice at a Boston law firm. Boston is a thriving center of ideas, and I quickly developed an interest in the law of the ownership of ideas - today we call it intellectual property - and the conflicts that arise from ownership claims. Boston is also the home of a very special legal community, which has a long tradition of public service. The Boston Bar Association, as but one example, is a place where, for generations, seasoned practitioners have nurtured the tradition of community and pro bono service, engaging young lawyers who, in turn, will pass that tradition on to the next generation.

I was immensely happy practicing law, and it came as a surprise when I was asked to consider becoming General Counsel at Harvard by its then new President, Neil L. Rudenstine. I accepted that offer, not least because of his commitment to higher education, the values to which he ascribed and the mission he saw for Harvard. In addition, the opportunity to return to Harvard was hard to resist.

My decision to leave Harvard was difficult. But for me to be appointed to the Supreme Judicial Court of Massachusetts was a moving experience. The Massachusetts Constitution begins with a ringing declaration of rights ("All people are born free and equal "), notwithstanding that the institution of slavery existed in the Commonwealth when that constitution was ratified in 1780. The first case the Court heard under the newly ratified constitution, this in 1783, concerned a challenge to slavery. In it, Chief Justice William Cushing declared that slavery was inconsistent with the new constitution. Given my own commitment to racial equality in South Africa, the opportunity to serve on this, the first court in the world to declare slavery unconstitutional and inconsistent with basic human values, was a particular honor.

Editor: You have been Chief Justice of the Supreme Judicial Court since 1999, long enough to have seen a number of developments in the Massachusetts judicial system. For starters, would you share with us some of the challenges that the system has faced in recent years?

Marshall: When I was appointed as Chief Justice by Governor A. Paul Cellucci, I had served on the Court for less than three years. I had a great deal to learn. I decided to spend considerable time listening to people inside and outside the judiciary, asking them to help me identify the challenges facing the judicial branch. It quickly became apparent that substantive justice received very high marks in Massachusetts. But the administrative part of the equation needed work. The delivery of justice was perceived to be both expensive and slow. And this was at a time when state budgets all across the country, including Massachusetts, were in free fall.

To meet the management challenges, I invited a group of business and civic leaders to advise the Justices on how we could improve the management of our court system. With a marvelous pro bono contribution from McKinsey & Company, the group submitted a report that has served as the blueprint for moving forward on administrative changes in our courts.

The Massachusetts Constitution provides that "there be an impartial interpretation of the laws, and administration of justice." We need to make that constitutional command operative, to ensure that people who come before our courts are treated with the same courtesy and respect, and have the same access to timely justice, irrespective of who they are or from where they come.

My goal is to make Massachusetts a national model of judicial excellence, not only in the quality of its decisions, but in all respects. This includes accessibility, efficiency and transparency. We are making substantial progress in all areas. We are both the oldest court in the United States, and one of the most forward looking. The Supreme Judicial Court webcasts all of its oral arguments, making them available both live and archived to anyone in the world. All of the Massachusetts courts are using technology to improve case management, enabling information to be shared inside and outside the judiciary, which leads to greater transparency of this branch of government. To improve case flow, we first adopted time standards in all criminal and civil cases, and then set goals for improving our performance. We are now measuring our performance, and will shortly issue the first ever case management report, detailing the changes and progress to date.

We have also recently completed a challenging study on the allocation of resources in courts across the Commonwealth. We want to make sure that all of our resources are allocated fairly, from courthouse to courthouse. This is crucial because a balanced and efficient allocation of resources will serve to make the growing challenges surrounding access to justice more manageable. Today there are court sessions in which more than half of the cases have litigants who represent themselves. Many people cannot afford a lawyer, and the concept that every litigant is represented by counsel simply no longer holds. Massachusetts is not alone in this regard. These are challenges that courts across our nation are facing. The effective use of technology is one way to meet these challenges.

Editor: Mike Greco, the immediate past President of the American Bar Association, has spoken out against the political, and personal, attacks that have been made against the judiciary. I think you know something about both. Would you share with us your thoughts on some of the pressures on judges from special interest groups and politicians?

Marshall: In 1941 this country took leave of the way in which most of the world's democracies permit commentary on judges and judicial proceedings. In Bridges v. California the United States Supreme Court held that central to the First Amendment is the right of the people to criticize their government. This includes the right to criticize judges and to comment on legal proceedings even when they are ongoing. In most countries with legal traditions similar to ours, commentary on judicial proceedings has always been curtailed. We, in contrast, have a long history of robust criticism of judges and judicial proceedings. What is new, however, and what is of great concern to Mike Greco and other thoughtful observers of the judicial process in America, is the current wave of criticism that appears designed to influence judicial decisions themselves, and is politically based. These are attempts to use the criticism of judges to affect the outcome of particular cases. This is dangerous.

It is particularly dangerous, I think, in those states where judges must stand for reelection or retention, or, indeed, any system where a judge is retained on the basis of his or her decisions in particular cases. This can only undermine the key concept of fair and impartial courts. Massachusetts is not one of these jurisdictions: once appointed, all Massachusetts judges serve for life, subject to mandatory retirement at age 70. Now, through the efforts of the ABA, and bar leaders like Mike Greco, as well as others, including in particular Justices Stephen Breyer and Sandra Day O'Connor, a national movement to reeducate the American people about our system of government and the way it functions - the separation of powers among the three branches of government and the crucial importance of an independent and impartial judiciary in that system - is underway.

Political accountability and judicial accountability are very different. Judicial accountability is accountability to the law alone. We have been fortunate in this country in having a judiciary whose decisions are based upon the rule of law. It is essential for the American people to understand that, while we have every right to criticize or take issue with the reasoning of a legal decision, it is contrary to our interests to have legal decisions based upon the popular will, and not the rule of law. I applaud the efforts of the ABA and others to educate the public about this vital distinction.

Editor: Speaking of the rule of law, one of the principal themes of our publication is the rule of law, with particular reference to its progress in places that have known a somewhat rougher form of governance. Massachusetts is not one of the latter, of course, but the unbridled attacks that resulted from the same sex marriage decision might make one think otherwise. Would you share with us your thoughts on the difficult path that a jurist must walk at a time when passion sometimes outstrips reason?

Marshall: The same sex marriage decision received a great deal of media and public attention. The day the case was argued our courtroom was filled to overflowing. When it ended, and we moved on to the next case, almost everyone left the courtroom. The next cases on the list that day may not have sparked any public interest, but those cases were just as important as the one receiving the public attention. As judges, we focus on each case as it comes before us, and we decide each case on the basis of the law - on our understanding of the law and as argued by the parties. What we may read in a newspaper and what we decide on the bench have no connection. Most judges wish to be remembered for being fair and impartial judges and embodiments of the rule of law. We approach each case attempting to achieve that ideal.

The words of the Massachusetts Constitution require judges to be "as free, impartial, and independent as the lot of humanity will admit." That is what John Adams sought to ensure by providing for life tenure for judges, for secure compensation and for removal only by impeachment, a difficult process. He meant to create a place where even a person in servitude, a slave, could receive a fair hearing. Despite the difficult path that a judge must walk at times, the heritage that we have received from the past has made doing so both a precious obligation and a source of great pride.