Attorney Joan Lukey had just returned to her office last July 21
from the John Adams Courthouse when she got a call from Supreme
Judicial Court Chief Justice Margaret H. Marshall, a longtime
friend and colleague. Marshall was calling a press conference at
the courthouse and wanted Lukey to be present.
Lukey recalls being perplexed, but she obliged and returned to the
courthouse. The biggest legal news at the time was the discussion
of budget constraints on the state courts. Crucial, yes, but hardly
the material for a spot press conference. Lukey entered a room full
of jurists and journalists. Marshall announced her retirement,
effective at the end of October, to care for her husband, author
and Pulitzer Prize-winning journalist Anthony Lewis, who has
Parkinson's disease. "There was an audible gasp," Lukey recalls.
"It was as if all the air was drawn out of the room."
Breaking the crockery
A quote attributed to Desmond Tutu goes like this: When a
pile of cups is tottering on the edge of the table and you warn
that they will crash to the ground, in South Africa, you are blamed
when that happens.
Individual rights have been the keystone of Margaret Hilary
Marshall's legal career. As a middle-class white person born in
South Africa, she came of age opposing the apartheid system then in
In June of 1966, Sen. Robert Kennedy was invited to speak in South
Africa, where protests were mounting against apartheid, with
dissidents being arrested, and with little support from the outside
world. As recounted in the book Robert Kennedy: His Life
(2000), he accepted the invitation from the anti-apartheid National
Union of South African Students, but expressed intense concern that
doing so would further endanger the dissidents. His guide for his
five-day visit was Marshall, then a college student who had been
elevated to the position of vice president (subsequently,
president) of the NUSAS because so many of the organization's more
senior male officers, including whites, had already been jailed.
Kennedy went on to give a speech there that is considered by many
to be the best of his life, in which he emphasized that denying
equal rights to some impoverishes all.
In an interview she later gave to the book's author, biographer
Evan Thomas, Marshall recalled, "I was 20 years old, thinking of
the threat of no work, no passport and no university." Lukey notes,
"The theory was that the South African government didn't dare
arrest a beautiful blonde woman and put her in jail. … She knew she
was being followed, and she always wondered whether they would
reach the point where they wouldn't care and they would arrest
Today, 45 years later, Marshall's diplomatic tenacity and
consistency in the legal interpretation of individual rights has
become the hallmark of her career.
She was appointed an associate justice of the Supreme Judicial
Court in 1996, and became chief justice in 1999. In her adopted
homeland, she has educated people across the state and the nation
about John Adams and the Massachusetts Constitution, created in
1783, which established the first constitutional form of democracy
with a written charter of rights, enforced by an independent branch
of government that is not accountable to the majority.
"You, as one of 'we the people,' can come to court and say, 'I
think that law, that government action, is inconsistent with
respect to my fundamental constitutional rights,'" Marshall says.
"You could not do that in England because it's not a constitutional
democracy." Despite the sweeping social changes - often driven by
the rule of law - that have occurred in her lifetime, she says the
Massachusetts Constitution today functions essentially the same way
it did when it was written.
Beyond gender and race
In 1996, Marshall's appointment to the SJC had its critics. She
was, at the time, only the second woman to serve on the Court in
its entire three-century-plus history. No person of color had yet
been confirmed. "I have been a great supporter of having a diverse
judiciary, and I think that I understood well the concerns that
were being expressed," she says now. "And certainly, those concerns
resonated with me. Racial equality is something that I have fought
for, in South Africa, and I am very committed to it, and so I never
felt that I was being personally attacked. … Thoughtful people were
making the point that there had been no person of color serving on
According to many of her colleagues, Marshall's judicial career
has demonstrated not only a sense of fairness, but also a dogged
attention to detail and an elemental pragmatism that has led to
sweeping improvements in the way the state court system functions.
So, when she announced her retirement in July, the biggest irony
was the ultimate praise contained within the lamentation that her
departure would be a big loss to the Court.
While she will likely always be associated with the historic 2003
Goodridge vs. Department of Public Health ruling that made
Massachusetts the first state to legalize same-sex marriage, she
says fairness under the rule of law and social change are two
different concepts. Judges must be concerned with equal treatment
of all people who come to the court, and decide cases based on the
conflicts between individuals or entities and institutions, either
against the government or against each other. "It's important to
the litigants and from the judge's point of view, [that] one
doesn't distinguish among cases that would have far-reaching
consequences, as opposed to the cases that have consequences only
to the immediate parties. That makes no difference."
Attorney Lisa Goodheart has known Marshall since 1990, when
Marshall was a partner at Choate, Hall & Stewart LLP and
Goodheart was a litigation associate at Hill & Barlow. "I don't
think I have ever known a person who is at the same time such a
true idealist and such a completely clear-eyed realist. She is
totally committed to the principles of constitutional democracy, to
equal justice for all, and to the rule of law, but this is combined
with an intense pragmatism. She has an obvious capacity to inspire
people on matters of high ideals, but just as important, she is a
person who always finds a way to get things done on the ground."
Order in the courts
One of the accomplishments Marshall is proudest of is also, as
she puts it, the least glamorous -- an inside-out, top-to-bottom
reform of the operations of the state court system to make it
function better. In 2002, the SJC justices appointed the Visiting
Committee on the Management of the Courts, a group of management
experts, business leaders and lawyers, headed by Boston College
Chancellor J. Donald Monan, who served as its chair, to assess the
courts' policies and make recommendations for improvement. In her
first years as chief justice, Marshall traveled across the state to
meet with members of the bar, judges and their judicial staff to
determine how well the judicial branch delivered justice to the
residents of the commonwealth. The verdict: while substantive
justice was in good stead, there were many complaints about how it
Some courthouses had a disproportionate number of employees as
compared to the number and the type of cases they handled, leading
to disparities such as the ease of obtaining a divorce in one
county rather than another. For crime victims, it could take far
longer to get a case resolved in one court than another. In child
abuse cases, adjudications of termination of parental rights that
take years are the equivalent of a lifetime. For impartial
administration of justice, everyone should be treated the same, and
that wasn't happening.
She appointed a committee to evaluate the situation, "which took a
lot of courage to put a group together to critique the performance
of the courts," said then-Superior Court Judge Robert A. Mulligan,
who was appointed chief justice for administration and management
of the Trial Court in 2003.
One step was to create a staffing model to analyze how many
staffers it takes to process a particular kind of case. "It sounds
incredibly boring, but that's the only way you can ascertain how
much money you will need to administer the court system," she
She also noted -- and reacted to -- legislators' comments that
they couldn't get a "straight answer" from the judicial branch on
actual funding needs. "I have made transparency one of the key
aspects of my tenure," she says. Performance goals are publicly
published quarterly, and lawmakers can review the data for their
respective districts on the number of cases filed, and how quickly
they are processed.
Getting a straight answer from staffers wasn't easy either, says
Mulligan. Two previous efforts to set criteria for staffing levels
had failed. The survey process "was fraught with concern," he says.
"People were afraid their jobs would be eliminated or that they
would be sent to an understaffed court." To get staff cooperation,
the work groups for each court got the word out to the unions that
the survey would not be used for the purposes of trimming or
More than 40,000 people come into Massachusetts courts every day,
excluding judges, staff and jurors - people whose lives are being
disrupted in one way or another. "What I try to do is to make sure
that those 42,000 people, every single day, receive justice as
efficiently and at the lowest cost possible," she says.
State court conferences
Perhaps an area where Marshall's influence will be most missed
is in her service on the boards of the National Center for State
Courts and the national Conference of Chief Justices.
"Her retirement will represent a great loss not only to the
Massachusetts judiciary, but to the national judiciary as well, and
in particular to the Conference of Chief Justices," says retiring
California Chief Justice Ronald M. George, who has presided over
court system reform in his state. He and Marshall both served as
CCJ presidents, which brings with it the chairmanship of the board
of the National Center for State Courts. "I think her presidency
was characterized by inclusiveness. She would make special efforts
to bring chief justices into the fold ... who perhaps had been more
on the sidelines, and [fostered] increased communication between
the organization's leadership and general membership as
"We feel her loss deeply in our circles and our organizations,"
says Christine Durham, chief justice of the Utah Supreme Court
since 2002, who succeeded Marshall in the president's post at the
CCJ and as chair of the NCSC. Every congressional ruling on civil
or criminal justice "impacts state courts, but they do not have a
voice in policymaking," she notes. Marshall "was instrumental in
elevating state courts on the national level."
The CCJ includes 56 chief justices in states and territories.
While every justice has a different background and every court has
different governance, the common goal is to improve access to
justice. Marshall, Durham says, always connected with staff running
the conferences to make sure they had what they needed.
Her consideration of others' needs runs from the practical to the
philosophical. Goodheart recalls Marshall attending the first
meeting of the newly-assembled Judicial Nominating Commission in
the spring of 2007. "She brought for each of the 21 commissioners a
copy of a little book by former SJC Chief Justice Hennessey, called
Excellent Judges, and she spoke to the commissioners very
thoughtfully about the work we were about to undertake," Goodheart
says. Since then, she says, she and her fellow commissioners have
sought Marshall's views many times. "She has been extremely
generous with her time and her insights. It is clear that she is
dedicated in a very deep way to the highest standards of excellence
within our state judiciary, and to the importance of maintaining an
Mary McQueen, president of the NCSC, credits Marshall with raising
federal awareness of the role of state courts. Ninety-five percent
of litigation takes place in state courts; Marshall supported the
creation of an Annual State of the State Courts address to the
American Bar Association and was the first chief justice to deliver
it. "Just through her dedication, personality and incredible
insight, she has re-ignited among chief justices a renewal of
commitment to the goal of insuring that individuals' as well as
government rights are protected," McQueen says. "Coming from an
immigrant background to the United States, she, in a way that some
of us who are born natural citizens don't really appreciate,
[recognizes] what she calls a jewel of democracy. She sees
importance in the almost-miracle of the American judicial system
and the courts here."
The word that wasn't used
It was a word that Anthony Lewis didn't use in his
columns on South Africa that impressed Marshall. She had been
reading his columns in The New York Times before she met
"The way some journalists write about South Africa has sometimes
struck me as odd," she says. When the new government was formed
after Nelson Mandela's release from prison, most news reports
described the new government as 'black majority rule.' "I never
understood the concept 'black majority rule,'" she says. "It was,
after all, changed to majority rule. We don't describe our country
as 'white majority rule.' … and I don't think Tony ever wrote a
column about black majority rule."
Lewis, she says, "understood that the fundamental issue in South
Africa was power, and exclusion of the majority of the population
from exercise of democratic power. It happened to have a race
connotation, but the fundamental issue was justice and freedom and
equality rather than 'racial' equality."
Marshall and Lewis share a love for the law, and a profound
respect for each other's chosen professions' role in society. "Of
course, I couldn't talk to him about the cases as they were being
decided [in the SJC]. But we have attended many judicial
conferences and bar associations together, and have had the
opportunity to hear wonderful speakers together, and because we
have such close, overlapping interests, he is more likely to want
to come to a judicial conference than, perhaps, some spouses."
"Devoid of smallness"
Those who know Marshall personally as well as professionally all
have stories about her -- the hand-written notes in lieu of
e-mails, the simple but meaningful social gestures, the curiosity
and engagement with whomever she is with at the moment. She is an
extensive world traveler who has not lost sight of the importance
of home and family. Colleagues note her willingness to mentor
people, and to travel thousands of miles to speak at
Jessica Block, now with the law firm of Block & Roos, met
Marshall in1981, the year before she graduated from law school at
Northeastern University. Marshall was then an associate at Csapler
& Boch. "Even then, you knew," Block says. "I remember when I
was an associate and she would take me to a marketing event. She
was a magnet. Everybody came up to her. I think that's going to
continue. I'm looking forward with interest to the next
Goodheart observes, "She has always been very generous in offering
encouragement and wise counsel to a great many people. She
remembers people, and she always asks how the family is doing and
wants to see pictures. She enjoys hearing stories. She loves
introducing people to each other and telling them what they have in
common. She is incredibly skilled at engaging a group in
conversation in such a way that everyone feels recognized and
included and drawn right into the thick of it. She asks a lot of
questions, and she listens, and lets you know you have been heard.
These things make a powerful impression, and they matter."
When gatherings are more adversarial and less collegial, Marshall
also shines. Mulligan notes, "She's very, very cool under fire.
She's a great leader in that respect; she has an innate optimism
that things will work out. That's not to be confused with being
satisfied with things that need to be improved. I think she has an
innate outlook to find the best in people." He pauses. "From my
personal perspective, she has been a great pleasure to work with, a
wonderful person to engage with . . . She is a person who is devoid
of smallness. That's genuine."