Chief Justice Margaret Marshall: a lifetime devoted to defending liberty and justice for all.

• Author: Cardinale, Jessie R.
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium - Testimonial

"The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.... [I]t may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life." (1)

1. INTRODUCTION

   Chief Justice Margaret Marshall, the first female chief justice of the oldest continuously-functioning appellate court in the Western Hemisphere, is an iconic figure. (2) From her political activism against apartheid in her native South Africa as a young adult, to her most recent accomplishments as the Chief Justice of the Massachusetts Supreme Judicial Court, Chief Justice Marshall has earned a reputation as of one of the nation's most eminent jurists. (3)

   This paper will examine Chief Justice Marshall's voting trends during her tenure as Chief Justice of the Massachusetts Supreme Judicial Court (October 1999 to November 2010). In Part II, the Chief Justice's upbringing and career path will be discussed. (4) Part III will provide a brief overview of the ideological composition of the Court. (5) Then, in Part IV, Chief Justice Marshall's voting patterns will be studied in three important ways. (6) First, divided cases will be analyzed to reveal any patterns that emerge. (7) Additionally, these decisions will be reviewed to determine when, and regarding what matters, Chief Justice Marshall joined an associate justice's dissent. Second, cases authored by Chief Justice Marshall will be reviewed. (8) Here, split decisions will be scrutinized more closely, especially those of a controversial nature. (9) Third, dissents authored by Chief Justice Marshall will be evaluated, and data will be examined to illustrate the number of times these opinions were joined by associate justices on the bench. (10) The methodology for each portion will be explained in the footnotes. An emphasis will be placed on cases that most accurately depict areas where the Chief Justice has a particular interest, instead of those where the Court reached a unanimous decision. Finally, Part V will present the findings of the voting analysis, as well as potential explanations for the results reached. (11)

2. BIOGRAPHICAL NOTES

   Before examining Chief Justice Marshall's voting patterns, it is important to understand her background and career path. Marshall was born in Newcastle, South Africa in 1944. (12) Her mother, Hilary A.D. Marshall, was born in Richmond, England, and her father, Bernard Charles Marshall, was native to Johannesburg, South Africa. (13) Mr. Marshall was a chemist as well as a production manager at African Metals Corporation. (14)

   In 1948, shortly after Chief Justice Marshall's birth, the Nationalist Government in South Africa came to power and enacted laws that enforced segregation throughout society. (15) Known as apartheid laws, this legislation had the power of institutionalizing discrimination. (16) Some of these laws included the Prohibition of Mixed Marriages Act of 1949, which prohibited marriage between people of different races, and the Immorality Act of 1950, which forbade all sexual relations between whites and non-whites. The political landscape of South Africa during this time played a vital role in the development of Marshall's principles and beliefs.

   Chief Justice Marshall attended the University of Witwatersrand in Johannesburg, South Africa where she majored in English and art history. (17) From 1966 to 1968, she was her school's president of the National Union of South African Students, and led her fellow classmates in protests against apartheid. (18) At the time, the National Union of South African Students was the only multiracial national group in the entire country. (19)

   In 1968, Chief Justice Marshall immigrated to the United States in order to pursue a graduate education. (20) She studied at Harvard University, where she was awarded a graduate scholarship by the Ernest Oppenheimer Trust, and received her master's degree in education. (21) Soon thereafter, from 1973 to 1975, she attended Yale Law School and received her juris doctor degree. (22)

   Chief Justice Marshall began her legal career in private practice. (23) From 1976 to 1989, she served as both an associate and a partner in the Boston, Massachusetts law firm of Csaplar & Bok. (24) During this time, in 1978, she was naturalized as a United States citizen. (25) A few years later, she married then New York Times columnist, and two-time Pulitzer Prize winning author, Anthony Lewis. (26) From 1989 to 1992, Marshall continued in private practice at another Boston firm, Choate, Hall & Stewart. (27) Her practice consisted primarily of civil litigation, and she was renowned for her expertise in the area of intellectual property law. (28)

   While pursuing her career in private practice, Chief Justice Marshall continued the fight against apartheid by pressuring the United States to impose sanctions against South Africa for its racial segregation. (29) At that time, advocating sanctions against her native country was a treasonable offense, and as a result, she was banned due to her activities in America. (30)

   In 1992, Chief Justice Marshall returned to Harvard University, where she served as General Counsel and Vice President until 1996. (31) In that position, she was responsible for Harvard's legal and regulatory affairs. (32) Additionally, she served as an active member of the President's Academic Council. (33)

   Chief Justice Marshall was first appointed an Associate Justice of the Supreme Judicial Court of Massachusetts in November 1996. (34) In September 1999, she was appointed as Chief Justice by Republican Governor Paul Cellucci. (35) Following her confirmation by the Governor's Council, she began her term on October 14, 1999. (38) Chief Justice Marshall is the second woman to serve on the Supreme Judicial Court, following former Associate Justice Ruth Abrams. (37) Of great significance, Marshall was the first woman to serve as Chief Justice in the Court's more than 300-year history. (38)

   On July 21, 2010, Chief Justice Marshall shocked the Court when she announced her resignation after serving as Chief Justice for eleven years. (39) She expressed that her decision was the result of her wish to spend more time with her husband, who had been diagnosed with Parkinson's disease. (40) She stated,

   [a]s many of you know, when you have the kind of marriage that Tony and I have,... our decisions are always joint decisions. But Tony insisted from the beginning this was my decision. I think he has been wonderfully supportive throughout my career and he is very supportive of this decision as well, but the decision is mine. (41) Many were saddened by the news of Marshall's retirement.

   On November 4, 2010, Governor Deval Patrick nominated Justice Roderick L. Ireland to become the first African American Chief Justice of the Massachusetts Supreme Judicial Court. (42) A politically liberal member of the Court, Ireland often voted alongside Marshall in many of her landmark decisions. (43) Marshall, an avid supporter of Ireland's nomination, stated "[i]n the annals of our long history, Roderick Ireland will be recognized as one of the great jurists, one of the great chief justices of this commonwealth.... I support, in the strongest possible terms, his confirmation to that position." (44)

3. THE CURRENT COURT

   In order to gain a better perspective of Chief Justice Marshall's voting pattern, it is helpful to look at her votes in comparison to the rest of the bench. In general, the Massachusetts Supreme Judicial Court is considered to be liberal because it tends to favor criminal defendants, and appears to extend a broader protection of fundamental rights. (45)

   The "politically liberal" justices of the Court include Justices Roderick L. Ireland (the newly appointed Chief Justice), (46) Margot Botsford, and Ralph D. Gants. Justices Bostford and Gants were both appointed by Democratic Governor Deval Patrick in 2007 and 2009 respectively, while Ireland was appointed by Republican Governor Paul Cellucci in 1997. (47) These justices, although their voting patterns are not extensively studied for the purposes of this article, exhibited tendencies such as favoring criminal defendants and upholding individual liberties. (48)

   The "politically conservative" justices of the Court include Justices Francis X. Spina, Judith A. Cowin, and Robert J. Cordy. All were appointed by Republican Governor Paul Cellucci. (49) Justices Spina and Cowin were appointed in 1999, and Justice Cordy was appointed in 2001. (50) Also, though not studied extensively, these Justices exhibited tendencies such as favoring the prosecution in criminal matters, and narrowly construing fundamental rights. (51)

4. VOTING ANALYSIS

   1. Split Decisions from October 1999 to November 2010

      During the time period from October 1999 to November 2010, the Court issued 104 split decisions. (52) Of these 104 split decisions, Chief Justice Marshall voted with the majority 85 times, (53) or 82% of the time; she voted with the dissent 19 times, (54) or 18% of the time.

      1. Dissents: Ideological Breakdown

         The chart below depicts the ideological breakdown of when Chief Justice Marshall voted with the dissent. Criminal cases pertain to the rights of a criminal, including such issues as reasonableness of searches and seizures and the admissibility of evidence. Labor and employment cases encompass the employer and employee relationship regarding issues such as employment discrimination, wages, unemployment compensation, workplace safety, and workers' compensation. Family cases involve adoption, child custody, divorce, marriage, and guardianship matters.

      2. Dissents: Associate Justice's Dissents Joined by Chief Justice Marshall

         The chart below depicts the number of times Chief Justice Marshall joined an associate justice's dissent. The legend characterizes the ideology of each justice as either politically liberal or...