Margaret Marshall is certainly no Pollyanna, but something about speaking with her kindles optimism.
The former Chief Justice of the Massachusetts Supreme Judicial Court has a way of looking at things, a calm, reasoned, broad view that leads you gently to accept — at least for awhile — her conclusion that “little by little, things are getting better.”
She likes to take the long view: change for the better is possible if you just keep plugging away at it.
In her student days in South Africa, she was deeply involved in the anti-apartheid movement as president of the National Union of South African Students. That racist regime fell eventually — although well after she moved to this country in 1968.
Here she attended Harvard and Yale and became a lawyer and pushed for greater recognition of women in that field, and women’s and human rights more generally.
“I was very active in the women’s bar association in promoting more women and other excluded groups onto the judiciary long before I was on the judiciary myself,” she said this week, sitting on the porch of her West Tisbury home.
“I was on the gender bias task force of this and that entity. I was very active.”
She was part of the successful push for changes to health insurance, so health issues related to infertility were covered. She was active in the civil liberties union.
And in 1996 she was appointed as an associate justice, and then, three years later, chief justice of the state Supreme Judicial Court. She was the first woman to serve as chief justice and wrote more than 200 opinions during her tenure on the bench of the state’s highest court.
“When I was appointed by Gov. [William] Weld as an associate justice on the Supreme Judicial Court, the court was then 304 years old and had had only one woman and no person of color,” she recalled. “So he appointed me, and then the next person was Rick Ireland, who was the first and only African-American on the court.”
Ms. Marshall, who retired from the bench in October of last year, called her appointment “fortunate,” saying that by the time she came on the scene it would have been “very difficult for the governor not to have appointed a woman. “By then,” she said, “those barriers [of gender and race] were falling down.”
“I think of the women a decade or two older than me. Sandra Day O’Connor was the first and now we have four on the [federal] Supreme Court, and on the Supreme Judicial Court of Massachusetts we now have three. It seems inconceivable we could go back to an all-white, all-male court now.”
But in truth those barriers do not, as she said, fall down. Instead they are chipped away, and ultimately knocked over by deliberate acts.
And in 2003, she led from the bench in knocking down a big one, when the court ruled in support of gay marriage, a 4-3 decision which The Boston Globe later said “reshaped the Western legal world.”
Hyperbolic, perhaps, but it nonetheless underlines her point that much has changed in a relatively short time.
“When I think of the world that I entered . . . consenting adult same sex was outlawed in many states. There were residual effects of race discrimination in the United States,” she said. “It’s a very different society now.
“Of course there are still challenges, for women, for people of color, for people based on their sexual orientation. But little by little things are getting better.”
She also said Massachusetts was different from the federal bench and from many other states in that it had a long tradition of judicial appointments across party lines.
“The Massachusetts Constitution dates from 1780, drafted by John Adams. And the federal Constitution takes as its model the Massachusetts Constitution,” she said. “Adams made the appointment of judges political in this sense: They were to be nominated by the governor, subject to the advice and consent of another political branch.
“He placed that responsibility within the political branches, but he made judges independent by giving them life tenure. The theory is, once you become a judge, it makes no difference who appointed you, you don’t have to look over your shoulder and wonder whether or not you are pleasing the person who appointed you.”
Any system that forced judges to “look over their shoulders” for fear of losing their tenure was dangerous.
Ms. Marshall cited examples, both domestic and foreign, to underline the point. She opposes the election of judges — a majority of states elect at least some and a handful elect even supreme court justices — and other states have other systems that impinge on judicial independence.
In Iowa, for example, she said the system allowed a judge to serve for a number of years and then there was a vote, up or down. Nobody campaigned.
“And the Iowa Supreme Court was one which said you couldn’t deny marriage to people on the basis of sexual orientation. At the very next retention election, three justices lost their jobs. That had never happened in the history of Iowa,” she said.
She continued: “In New Jersey it’s a gubernatorial appointment. It’s not an election, but the governor gets to decide whether you stay or go.”
In this, she said America is out of step with the rest of the democratic world.
“The interesting thing is that every country that now is moving toward what I consider the United States model, with a written charter of rights . . . where judges are doing what American judges are doing, they have established a single lengthy term.
“No countries have what the United States has in the federal system, which is [appointment] for life. Every new system either has mandatory retirement or a single term . . . where you serve for X number of years and then leave the bench.
“It’s widely recognized that once you are appointed, it doesn’t matter how you decide a case, it’s never going to have an effect on whether you get reappointed, re-elected, retained, whatever,” she said.
“That’s the guarantee for a judge being independent.”
Her other big concern is the increasing scrutiny of judges’ backgrounds and increasing pressure on them to conform to certain views.
“Somewhere in the last 25 or so years, it’s become almost as if people want judges to commit to taking certain positions on certain issues even before the case is before them. And I think that is one of the most dangerous things,” she said.
“I think we are making a terrible mistake as a people if we think because someone has said something in the past, that is going to predict how they will rule in cases in the future. It shouldn’t and it often doesn’t.
“But the more you permit that to happen in senate confirmation hearings and in Massachusetts, before the governor’s council, I think it undermines the very notion . . . that you will be able to decide the cases fairly.”
On the other hand, she said she had no problem with people commenting on the way judges conduct themselves in office.
“I always thought it the right of every person in Massachusetts to be as critical of me as they wanted. The judiciary is part of government and we live in a democracy and while I didn’t like some of it, I never objected to it,” she said.
Some other countries are aghast at the way judges are judged and court proceedings are analyzed and criticized even while in progress.
“Where you have a democratically-elected government pass a statute and then somebody can challenge it in a court of law, and then a judge . . . says that statute is inconsistent with the constitution and essentially that’s the end of the statute, that’s an awful lot of authority in the hands of judges,” she said.
Ms. Marshall noted that until as recently as 1941, the situation was similar in the U.S. She has not always been well received when she has argued other nations should make a similar leap.
“I once put it to a conference in Australia that people should be able to say whatever they liked about judges. I think the speech was quite enjoyed by members of the press and not enjoyed by the members of the judiciary.”
Still, she is concerned about the shrillness of some of the criticisms, and the increasing lack of civility in public debate in general.
“I worry about it. The history of the United States is of open robustness and freedom in the marketplace of ideas.
“I’m a listener to talk radio and sometimes when one hears about other societies where so much harm has been done by the mass communication of hate ideas . . . there’s a part of me that wishes we’d learn to be a little more cautious. It makes me very unhappy, unsettled, disquieted.”