Early Days of Apartheid Shaped Belief System for Chief Justice
By IAN FEIN
She first came to the United States as a high school exchange
student from apartheid-era South Africa in 1962, near the height of the
civil rights movement.
At a young age, Margaret H. Marshall, who is today the chief justice
of the Massachusetts Supreme Judicial Court, witnessed marches in the
street, listened to debates in Congress, and - in her words
– saw democracy working before her eyes.
"I tasted freedom. There is no other way for me to describe
it," said Chief Justice Marshall, now 62, who led a student
movement against apartheid when she returned to her home country later
that year.
SRC="http://www.mvgazette.com/news/2007/07/13/content/margaret_marshall_1_sm.jpg" "Once your eyes are opened, your eyes are open," she
said, her South African accent still easily recognizable. "You can
no longer simply ignore injustice."
The first woman to head the judiciary branch of the commonwealth,
Chief Justice Marshall takes deep pride in upholding the Massachusetts
state constitution, a political document that laid the cornerstones of
modern democracy.
In a conversation at her home in West Tisbury last weekend, she
reflected on the American democratic system, and her judicial career,
only a few days after the Fourth of July. Along with her husband, former
New York Times columnist Anthony Lewis, Chief Justice Marshall is a
longtime seasonal resident of the Vineyard.
"I went to law school not to be a lawyer, but to learn about
this country and how its democracy works," she said, sitting on
her screened-in porch, a glimpse of Tisbury Great Pond barely visible
through the trees. "The United States has a very thrilling,
vibrant government. It's fascinating, absolutely
fascinating."
As framed by John Adams, the Massachusetts constitution was
innovative in its approach to democracy. It is the first founding
document that began with a written charter of inalienable rights, and is
also the first to create an independent judiciary to protect those
liberties. A well-read political theorist, Mr. Adams envisioned three
coequal branches of government, in contrast with earlier systems where
judges depended on a king for their salaries and tenure, and were
required to uphold any laws passed by parliament, no matter how
draconian.
"John Adams wanted to make judges, in his words, ‘as
free, impartial and independent as the lot of humanity will
admit,' " she said. "This was truly revolutionary
because at that time the British parliamentary system was
supreme."
SRC="http://www.mvgazette.com/news/2007/07/13/content/margaret_marshall_2_sm.jpg" Ratified in 1780, the Massachusetts state constitution predated the
federal constitution by almost a decade, and its structure has since
been embraced across the globe.
"What the United States was doing as a government was unusual
and unique, and wasn't followed anywhere until after the Second
World War," the chief justice said. "But by the end of the
20th century, virtually every new democracy adopted the Adams model with
a written bill of rights, which can be enforced by independent
judges," she continued.
"After 227 years, it remains the longest-lived constitution in
force in the longest living democracy."
Ms. Marshall returned to the United States after college to pursue a
master's degree in education and then a law degree from Yale
University. She specialized in her years of private practice on
intellectual property rights, and served as president of the Boston Bar
Association before she was appointed general counsel for Harvard
University in 1992. She said she never intended to be a judge, but could
not turn down the opportunity when Gov. William Weld nominated her to
the Supreme Judicial Court in 1996. Three years later, Gov. Paul
Cellucci nominated her as chief justice.
"I now have the distinct honor of serving on a court that I
long revered," she said, "and which played such an important
role in the history of civil liberties."
Ms. Marshall said she learned about the Massachusetts court and
constitution from her readings in South Africa. The very first legal
case concerning the new constitution was brought by a slave, Quock
Walker, who was seeking his freedom.
"Mr. Walker came to the court and said, ‘Look at this,
your constitution says that all men are created equal,'" she
said. "The Supreme Judicial Court in 1783 agreed with Mr. Walker,
and said slavery was inconsistent with the constitution. It was the
first judicial decision in the world that enforced a bill of rights and
put an end to slavery, all with the stroke of a pen."
Two hundred and twenty years later, Chief Justice Marshall leaned on
that same principle of equality in her own historic decision, when she
authored a 4-3 majority opinion that declared a ban on same-sex marriage
violated the state constitution.
SRC="http://www.mvgazette.com/news/2007/07/13/content/margaret_marshall_3_sm.jpg" Released in November 2003, it remains the first and only such
judicial decision in the United States.
"Without the right to marry - or more properly, the
right to choose to marry - one is excluded from the full range of
human experience and denied full protection of the laws," she
wrote in Goodridge vs. Department of Public Health. "The marriage
ban works a deep and scarring hardship on a very real segment of the
community for no rational reason."
Unsurprisingly, the decision proved incredibly polarizing. Ms.
Marshall is hailed in some circles as a hero of civil liberties, while
she is criticized by many conservatives as an activist judge, and even
by some members of the gay and lesbian community, who saw the decision
as setting back their larger cause. Conservative outrage over the
decision helped spark a series of constitutional bans on gay marriage in
states across the country, and Ms. Marshall soon found herself at war
with Massachusetts lawmakers, who cut funds for the state court budget.
But she appears to have taken these reactions in stride. Though she
would not comment on the Goodridge case specifically, she said she
always approaches each case on its legal principle, without considering
political or social implications.
"It's not that I don't watch or read the news. But
it really has no impact," she said. "As a judge, you cannot
decide cases that way. You look at the facts, you hear the arguments,
you examine the precedence, and you make the best decision you can. And
then you move on to the next case."
Massachusetts remains the only state in the country where gay and
lesbian couples can legally marry. However, Chief Justice Marshall in
her decision compared the issue to past bans on interracial marriage,
and noted that it took almost 20 years after the California Supreme
Court ruled on that topic before the nation's highest court
followed suit.
Judges must decide each case to the best of their ability, she said,
and then let history determine which were the most significant.
She recalled the famous Cape Town speech of the late Sen. Robert F.
Kennedy, with whom she traveled in South Africa during the 1960s, and
paraphrased from his remarks.
SRC="http://www.mvgazette.com/news/2007/07/13/content/margaret_marshall_4_sm.jpg" "Each tiny act of courage is like a little pebble dropped into
a pond, which forms a ripple of hope. And you never know which ripple
may join with others to form a wave that can then break down the
greatest fortresses of oppression," she said. "That is a
very powerful message for the many young people today who might look at
the war or environmental pollution and think, ‘What difference
does it make?' "
Only months after Ms. Marshall returned to the United States for
graduate school, assassins killed Senator Kennedy and Martin Luther King
Jr., whose writings and audio recordings she had smuggled into South
Africa. She said the two killings shattered her, but did not disrupt her
faith in the country and its democratic system, which ultimately
persevered.
"Like anything, you pick yourself up and dust yourself
off," she said. "I really came to understand and love this
country, and the way Americans wrestle with their deep moral and ethical
conflicts. This is not a take-it-for-granted society."
In recent months, the U.S. Supreme Court has shifted demonstrably to
the right, with a series of 5-4 decisions upending years of precedence,
much of it eroding civil liberties.
But Ms. Marshall said she is not as concerned about the national
judicial system as she is about the many state courts where judges are
subject to reelection or reappointment, and lack the independence
envisioned by John Adams as necessary for a properly functioning
democracy.
"These judges who are up for reelection or reappointment, they
are taking away some of the building blocks," she said. "My
greatest concern is what is happening in these state courts, where 90
per cent of all judicial matters are resolved." She concluded:
"But in Massachusetts and the federal courts, I have the
utmost confidence in the mechanisms that were put in place in our
constitutional system. You may disagree with a certain type of judge, or
a particular decision. But that is our system. And it has worked very
well over a very long period of time."
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