Judge Gants gives inside view of SJC at labor conference

Issue July 2011 By Bill Archambeault

Supreme Judicial Court Associate Justice Ralph D. Gants delivered the keynote address at the 32nd Annual Labor & Employment Law Spring conference, giving attendees an inside view of the workings at the state's highest court.

The conference, held June 6 at the Colonnade Hotel in Boston, featured a daylong series of programs, followed by an afternoon reception co-sponsored by the General Practice, Solo & Small Firm Section.

Gants told the audience that he'd promised conference organizers not to devote his speech on the court systems' well-documented budget hurdles -- which he occasionally managed to work in references to.

"Indeed, the infrastructure of our courts is at risk … but I shall not speak about that," said Gants, who later added: "And I will not encourage you to contact your legislators because the next round of cuts will be catastrophic."

Aside from an occasional reference to budget calamities, he focused on explaining the caseload, schedule and responsibilities of the justices. He said that the weekend before a sitting, justices are reading roughly 3,000 pages of briefs for between 16 and 20 cases they're considering hearing. A "reciting judge" will lead the discussion on an individual case and make recommendations to the group, though he noted that it is the practice of the current SJC for every justice to read up on each case.

"It is the practice of our court to read the entirety of what's before us," he said, noting that each justice's familiarity with each case often makes it difficult for the attorneys arguing before the court to finish a statement before the questions begin.

A criticism of the Court, he said, is that the justices are perceived as having made up their minds before oral arguments are presented, but Gants said that is not the case. While justices may have "a preliminary view" of a case before hearing arguments, the first time the justices discuss cases as a group comes only after hearings, when they sit "ensemble."

"If you think your oral argument is only a formality, in the vast majority of cases, it is not," he said.

After the chief justice assigns one of the justices to write the ruling, they have about two or three weeks to finish, Gants said.

"It's not nearly as much time as I thought," he said, describing the back-and-forth revisions the justices go through with their law clerks. (Gants said he has not broken from his habit of always writing a first draft himself.)

There's also a substantial amount of the background reading done before deciding which cases the SJC will hear, he said, noting that he spent part of his son's graduation weekend reading some 20 Appeals Court decisions.

"It's a little bit like searching for gold," he said. "One generally has to sift through a lot that is not gold to find it."

Until the Court's final sitting in May, the justices keep "a rather relentless pace," he said.

Gants described the ways in which cases make it before the SJC, including further appellate review and direct appellate review, sua sponte cases in matters of "significant" legal consequence, and cases by right -- including first degree murder cases. "Friday is murder day at the SJC. It can be quite a grisly day."

He explained some differences between the SJC, which handles between 160 and 180 cases a year, and the U.S. Supreme Court, which handles about five dozen, he said. The SJC's justices are also not as critical of each other, or as predictable, as those on the Supreme Court.

"We have been, and I trust, will continue to be a collegial court. We generally don't attack the author of a decision," he said, referring to public criticism exchanged between justices Antonin Scalia and retired Justice John Paul Stevens.

"And unlike the Supreme Court, we are much less predictable about where we will end up [with our decisions]," Gants said.

Finally, he answered audience questions, advising those appearing before the Court not to cite rulings from states which have different laws ("It's interesting to know what Mississippi is doing - unless the statute is different.")

One audience member asked why there's been so little guidance from the SJC on noncompete issues.

"I know full well how little guidance there is on noncompetes," Gants said, noting that it was one of the reasons the Business Litigation Session was created. "We're not running from noncompete cases, but in general, they just don't get [to the SJC]."

Finally, Gants was asked how technology has changed the Court.

"Not nearly enough," he said, giving an example of how law clerks will sometimes take work home because their computers are faster. He finished the session by referencing the subject that he was asked not to speak about -
court funding.

"We have a lot of great ideas [for using technology], but we don't have the money for them," he said.