Hail to the chief
Supreme Judicial Court Chief Justice Margaret Marshall says funding the state court system properly is not a choice but a constitutional mandate
Margaret Marshall ushers me down a series of hallways, turning on lights as she goes. It’s nearly 5 p.m. on the 10th anniversary of her appointment as chief justice of the Massachusetts Supreme Judicial Court, and Marshall wants to show me the consultation room where she and her six colleagues deliberate. It’s a large wood-paneled room with a fireplace on one wall and a long table down the middle, the same table that Marshall’s predecessor, Oliver Wendell Holmes, used for such meetings 100 years ago. Papers are arranged in seven neat piles for the next day’s monthly gathering of the justices. Marshall sits at the head of the table and the other six justices, arranged by seniority, sit along the sides. Like a mother hen, Marshall recites the name of each justice and where they sit until she comes to the court’s newest addition, Justice Ralph Gants. She calls him “the baby judge.”
Traditions are carefully observed when the justices meet, Marshall says. No food, drinks, or aides are allowed in the room. Justices address each other using their titles; first names are forbidden. The justices also dress appropriately. Marshall recalls telling one newcomer to the bench to put on a coat and tie after he came to the meeting dressed casually. As Marshall tells these anecdotes of court life, her pride in the court and its history is evident.
But the job of chief justice is more than writing judicial opinions on some of the most important issues facing the state. She also oversees the entire Trial Court, and she is worried that budget cuts here in Massachusetts and across the country are plunging state court systems into crisis. In a speech to the New York City Bar Association in November, Marshall said state courts handle 97 percent of all litigation in the United States yet are at “the tipping point of dysfunction.” She says many state courts are forced to offer “turnstile justice” in the face of shrinking resources and rising case loads, although she tells me that’s not happening yet in Massachusetts.
Commonwealth: One of your chief concerns is that state court systems don’t have a seat at the table when budget cuts are being made, that lawmakers treat the courts like just another state agency instead of a coequal branch of government. Is that intentional?
Marshall: I don’t think that they intend to treat us like another state agency, but the point I try to make as frequently and as loudly as I can is that we’re not a public policy option. I do not want to close day care centers. I do not want to find that people with substance abuse problems cannot get access to treatment programs. That is part of the safety net that we would hope to provide to all citizens. But those are choices that the Legislature has to make. Whether to keep the judicial branch functioning is not a choice; it’s a constitutional mandate. The Massachusetts Constitution is the oldest written constitution in the world still being enforced. In that constitution, it calls for an impartial interpretation of the laws and administration of justice. I cannot say to the people of Pittsfield, “Sorry, we’re not going to have a courthouse out there, you’re going to have to travel to Boston.”
CW: Traveling from Pittsfield to Boston is an extreme example, but Massachusetts has more than 100 courthouses. Couldn’t some of them be consolidated?
marshall: One could collapse certain courthouses, although one of the strengths of the Commonwealth’s delivery of justice is that you don’t have to own a car. Are there ways that we might have to streamline? Yes. But it’s not easy and I would think we’d want to do that as a last resort.
cw: Your budget has already dropped by $50 million this year. If state revenues continue to slump and more budget cuts are needed, what will happen to the state court system?
marshall: It will not be possible to deliver justice in the way that the constitution requires with those kinds of cuts. Chief Justice for Administration and Management Robert Mulligan and I have spent all of the last year trying to eliminate from the judicial budget all pieces that are not core functions of the judiciary. For example, alternative dispute resolution is one of the most successful ways to resolve disputes, especially civil disputes, in a way that is the least costly and with the greatest satisfaction for litigants. But we eliminated all of our alternative dispute resolution programs. I didn’t like doing that. I don’t think it’s a good policy to do that. But it is, from my point of view, a public policy choice. We eliminated almost all guardians ad litem, who play a crucial function, especially with children and the elderly, in terms of making sure that someone is in there representing their views. We’ve cut back on court stenographers and are using recording devices. Chief Justice Mulligan has many of our court buildings in leased facilities. He has renegotiated almost all of those leases. We have tried everywhere that we possibly can to cut back. We’re already down close to 600 people since July 2008. That’s a large number of people who have left. There has not been one person hired in the Trial Court Department since October 1, 2008 — in fact, March 2008, because we saw the signs coming.
cw: Other state court systems are shutting down one day a month. Will that happen in Massachusetts, too?
cw: Do you think the court system should receive a dedicated revenue stream, much like the MBTA does?
marshall: What you’re really looking for is stability. There are, in fact, a lot of discussions about whether there should be a minimum percentage of a state budget that should be allocated to the judicial branch without a debate over it. It sounds good on paper. But this is my view: The Legislature is charged with the business of raising taxes and appropriating money. I enjoy my discussions with the Legislature, helping them to understand what I need to deliver justice. Of course I would feel more comfortable if there was some formula that said if you have umpety-ump number of cases in the system, we will ensure that you have a minimum amount of money and then we can talk about add-ons. But I don’t think that’s how it really works in a democratic process.
cw: What do you want then?
marshall: I have asked for full transferability of all funds within the judicial budget in any given year. That does not mean that I’m asking for a blank check. What it means is, I go to the Legislature and say, “I have this number of judges, etc. I would like you to appropriate adequate funds. But if there is a crisis of some kind, I would like to be able to move funds around. When I come to you next year, I’m going to have to explain why I moved funds around.” That’s the kind of independence that I think would be most helpful. If I were an elected representative, I think I would want to know how money allocated to the judicial branch is being spent — for example in connection with my courthouse. I have made transparency and accountability hallmarks of my administration as chief justice in part because when I first became the chief justice, a regular complaint I heard from legislators — and I considered them legitimate complaints — is “we can never get a straight answer.” For example, does the Boston Municipal Court have too many employees and the Springfield District Court too few? My answer was always, “I don’t know.” That was my answer in 2001 and 2002. I can now answer that question. I have moved from management by anecdote to management by data.
cw: How did you move to management by data?
marshall: I became the chief justice in 1999, and we hit our first serious downturn just a couple of years later. It was apparent to me quite quickly that during my tenure as the chief justice, which goes until I reach age 70, I would probably face a number of economic downturns. None has been as serious as the one that we are presently in, but it was clear to me that this was a recycling occurrence. Part of what I tried to do is to make sure that when I faced the next economic downturn, I had in place the data and the mechanisms to deal with it most effectively. That is one of the reasons why I, with the justices, invited this independent group of business experts [the Court Management Advisory Board] to come in and say how we can deliver [justice] in a more efficient way. I saw that we’d have fewer and fewer resources, and yet I have a constitutional obligation to make sure the court houses are kept open.
cw: What did the data show?
marshall: How many people it takes to process cases. Through the National Center for State Courts, we use the most sophisticated analysis that’s available to go into every courtroom and say, if you have an uncontested divorce with no children and no property, how many people does it take to process that case? I can now go on any single day into any courthouse in Brockton or Pittsfield or Fall River or Marblehead and look at how many cases are coming in the door, what kind of cases they are, and how many people I need to process them. Chief Justice Mulligan has said all along, and I agree with him, that we don’t want staffing at the 100 percent level, that we want to be reaching so that our judicial staff and our judges have enough resources but not an abundance of resources. We estimate about 90 percent of staffing level. The Land Court is now 40-something percent. We can see in different courthouses — particularly in the probate and family courts, where there has been a huge increase in the number of cases, and in the district court — that we’re way below staffing models. It will come as no surprise that the delivery of justice is very people-intensive. Technology can do so much. Buildings can do so much. But basically it’s a people-driven business. So focusing on the staffing models gave me the very first way to determine when we are headed into crisis.
cw: You have tried to become more scientific about allocating resources, but it seems like the Legislature wants to micromanage the courts by directing funds to specific courts and specific projects.
marshall: No, they don’t want to micromanage. We have far fewer line items. They’ve given us significant transferability. I think there’s a difference between saying you want to micromanage and you want accountability.
cw: So progress is being made in giving court officials more control over their budgets?
MARSHALL: Absolutely. It’s a two-way discussion. It’s a recognition that the Legislature wasn’t doing this out of some kind of pique. If the Legislature couldn’t find out exactly how the dollars are being spent, of course they are going to micromanage it and make sure they are spent in a certain kind of way.
cw: It seems like the probation system is one area where data isn’t driving decisions. Michael Keating, the head of your Court Management Advisory Board, tells me his group was studying the courts and discovered that costs were rising and caseloads were falling or holding steady. He says the group couldn’t figure out why until it looked at probation, which accounts for a quarter of the Trial Court budget. They discovered that from FY05 to FY08 the probation caseload went up 2 percent, its employee level rose 10 percent, and its budget increased 17 percent. Also, the Legislature doesn’t allow you to transfer funds out of probation in times of crisis and gives you little control over hiring there.
marshall: First, I don’t know all of Mike’s data because I haven’t seen those data. It may be that the cases have declined. I don’t know if the nature of the cases has changed. I do know that the Legislature has enacted statutes that require far more extensive monitoring of certain categories of people. There has not been full transferability, and I would say that it would be helpful to have full transferability in any given year so that when there are shortfalls we can move money around to address the critical needs. I do not know whether or not we would have moved money out of probation because the services that probation provides are critical for our judicial branch.
cw: You’ve said transparency and accountability are hallmarks of your tenure as chief justice. Yet the probation system, from the outside, seems like a closed system. It’s hard for someone like me to get data on how money is being spent there.
marshall: I can’t respond to that. When I talk about transparency, I’m talking about how many people are employed, what’s the caseload.
cw: You obviously have that information for the courts, but do you have that for probation?
marshall: Certainly, how many people are employed. Absolutely.
cw: But do you have the level of detail you have on the rest of the court system? For example, can you tell whether probation is overstaffed or understaffed?
marshall: When we did the staffing model for the processing of cases, the same study was not done for the processing of probation. Of course I’m aware of the concerns that are expressed, but if your question is, is there some way that I can’t get access to data, the answer to that is no.
cw: Let’s shift from the operation of the Trial Court to the SJC itself. You’ve been chief justice for 10 years. Is there such a thing as the Marshall Court?
marshall: No, I don’t think there is. Let me try to answer it this way. This court has been in existence since 1692. When I became the chief justice in 1999, I had served for three years as a judge. As I came on, I faced a seismic shift in the court [due to judicial retirements]. We became almost overnight a very, very young court. I saw as my first and most important function establishing this new court as a collegial cooperative court that delivered judicial opinions of the highest, highest quality. I would hope that when people look at the Supreme Judicial Court, they say this is a great state court. If that is in fact the reputation of the court, and I think it is, it is because of the hard work of the colleagues who have worked with me. Melding this court into a wonderful place that lawyers and judges and the public respect has been one of my priorities.
cw: How do you build collegiality?
marshall: That’s an interesting and difficult question. One of the things we’ve tried to do is not to try to get everybody on to the same position. In other words, if a justice wants to dissent from a position, I never try to change their mind. But what I do try to do is make sure that the majority of the court writes with one voice and the dissenting justice or justices write with one voice.
cw: How does the court craft its opinions?
marshall: I can tell you some of my best prose has hit the cutting room floor because one of my colleagues has said, “I’ll go with you but I’m not going to sign on to this piece.” You have to move your independence to one side, so to speak, and try to reach accommodation with your colleagues. We have a tradition at this court — and it’s one that I strongly support — that, by and large, we only talk collectively. We only discuss drafts together when we’re all sitting around the table, all seven of us. Now, sometimes, if there’s a justice who has a particular expertise in an area and I’ve got a little troublesome issue in a case, I may go to that justice and say, “Help me think through this.” There are those kinds of side discussions, but, in general, immediately after oral argument we all sit down together and discuss the cases argued that day. I then assign the case to one of the justices to write a draft opinion, and the process of what I call “almost joint writing” begins. Somebody prepares a draft and it gets circulated at the same time to everybody, and we sit around the table once a month [to go over opinions].
If you look on my desk, that pile is all draft opinions. I will have read them all. I will have made notes and comments. And we will go around the table in order of seniority. Justice Ireland, Justice Spina, Justice Cowin, Justice Cordy, Justice Botsford, Justice Gants. And everybody will comment. The comments will range from what we call little nits — just editorial things — to very helpful organizational things to real disagreements on particular language or a holding, whatever it is. I have seen cases that have changed, where the dissent has persuaded a majority of the justices to go the way of the dissent. Not often.
cw: The US Supreme Court has ideological factions. Does the SJC?
marshall: The names [of justices on majority and dissenting opinions] change all the time. I never know where my colleagues are going to come out, which is part of the fun. It doesn’t matter if it’s a civil case, a criminal case, or a domestic case, I never know who I’m going to persuade to be with me or who I’m going to agree with. I don’t think there’s anybody on this court who is pro law enforcement, or pro press, or pro management. You just don’t know.
cw: There really are no ideological splits?
marshall: The Massachusetts Constitution, which was the model for the federal Constitution, gives the governor the right to nominate anybody that the governor chooses to any judicial position. As a practical matter, since Gov. Francis Sargent, every governor has used what is in effect a merit selection panel by executive order. It’s not required by the constitution. It’s almost impossible to tell whether a justice has been appointed to the court by a Republican governor or Democratic governor based on the decisions. [Marshall was appointed to the court by Gov. William Weld and named the chief by Gov. Paul Cellucci.]
cw: Do governors ever ask you for your opinion on whom to appoint?
marshall: Yes, and I never tell them. Never.
cw: Do they all ask you?
marshall: The governor’s legal counsel may ask me my views on particular people. If I have them, I’m happy to express them. But I always wait to be asked. With appointments to this court, I have always taken the view that that is absolutely the governor’s choice. I do not want to be suggesting Candidate A rather than Candidate B and then getting Candidate B. I just think that would be very awkward.
cw: In one of your recent speeches, you talked about the Quock Walker case, in which the SJC ruled some 90 years before the Civil War that slavery violated the Massachusetts Constitution. Do you think that your ruling on same-sex marriage will be looked back on as equally momentous?
marshall: I don’t know the answer to that. I also don’t know if there are other cases that, when the history is written, people will say that was a groundbreaking case. But the slavery case was obvious. It was such a marked shift.
cw: And you don’t think your ruling that the Massachusetts Constitution allows same-sex marriages represents a similar marked shift?
marshall: I don’t think or not think. History just has to play itself out.
cw: Are you following what’s been going on in California, Maine, and New York, where opponents of same-sex marriage have scored victories at the ballot box or in the legislature?
marshall: It’s still very alive, but so are lots of other issues. I’m not trying to be cute. Of course when you say you want to talk about a case, I know [which one] you’re talking about. I don’t get quoted in the Economist every single day because of my various cases. One recognizes that something is a groundbreaking case. How history will view it is a very, very different question.
cw: What other cases would you consider to be groundbreaking?
marshall: I would say, from the Legislature’s point of view, perhaps the court’s decision on the Clean Elections Law garnered more headlines at the time. [In 2002, the SJC ordered the Legislature to either fund the law — a public financing system passed by the voters in 1998 — or formally repeal it. Lawmakers eventually chose to do the latter.] The whole idea of publicly funded elections was a very, very important issue at the time. I don’t know what’s happened to the debate, but certainly how we fund our elections and who’s available to run for office is not something that’s disappeared. I also think that new families — new not only because you’ve got many more divorces and remarriages, but also biologically new families — raises just a whole host of questions.
One of the other cases that we had, which I think is going to be a very important decision, is whether or not would-be legal parents, before the child is born to a surrogate mother, can obtain a judicial order that they be listed on the birth certificate. [Yes, according to the ruling in the 2004 case, Hodas v. Morin.] From the hospital’s point of view, the mother is the mother. Let’s assume the child is in crisis when it’s born, who is going to make the decisions? I can’t even remember whether that was reported in the newspaper, but when you talk about the lives of many people being affected, we know that in vitro fertilization and the whole science developed in respect to that is a new and growing field.
cw: Do you write all your own opinions?
marshall: Yes. I have wonderful law clerks. They do a lot of hard work for me. But I love to write. It’s a great reason to be an appellate judge.
cw: Anything else?marshall: You mentioned the Quock Walker case. It was the first case decided by this court under [the state’s new] constitution, and [it put] an end to slavery. When I was growing up in South Africa, I didn’t know a great deal about the United States. I didn’t have any legal training. I never thought I’d be a lawyer. I never thought I’d be a judge. I never thought I’d live in the United States. But I did know two things. I did know about the Supreme Judicial Court and its decision in that case and I did know about Brown vs. Board of Education. Growing up under the apartheid system and, as passionately committed as I was against that system and in favor of racial equality, those are two big markers on the road to full human dignity for all people.
For me, to serve on this court is a remarkable privilege. It also is, I hope, a tribute to what has made this such a great country, that I could come with no connections, alone, no legal training, and start practicing law in Boston and find myself as the chief justice. [It] is a remarkable statement for any society. I try to make that point when I look at young people who are going to law school for the first time. You really can become anything. For those born in the United States, they may take that for granted because we have so many examples around us. I never take it for granted.