SJC Chief Justice Margaret H. Marshall’s legacy

Issue November 2010 By Christina P. O'Neill

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 place.

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 her."

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 the Court."

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 was administered.

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 says.

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 transferring staff.

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 well."

"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 independent judiciary."

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 him.

"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 conferences.

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 chapter."

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."