Introduction to Chief Justice Margaret H. Marshall.

• Author: Marshall, Margaret Hilary
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium

I considered it a very great honor to have been asked by the Law Review to introduce our next speaker, Chief Justice Margaret Marshall.

Chief Justice Marshall has led an extraordinary life both in and out of the law, and both on and off the bench.

Born into segregated South Africa, Chief Justice Marshall can recall how her family's morning paper, The London Times, arrived with gaping holes due to government censorship. She can remember a time in her native land when being black meant having no right to own property or go to school or vote or travel freely in the country. She remembers and lived during the time when South Africa's Prohibition of Mixed Marriages Act and Immorality Act forbade legal marriage between people of different races and all sexual relations between whites and non-whites.

Margaret Hilary Marshall did more than just recognize the de jure and de facto discrimination all around her, she employed her highly analytical mind, her courage, her empathy, and her intellectual independence to affect change. She actively opposed the Apartheid Regime and served as the President of the National Union of South African Students, a leading anti-Apartheid organization.

Chief Justice Marshall graduated from the University of Witwatersrand ... with a Bachelor of Arts. Awarded an academic scholarship, she traveled to the United States and frittered away those years getting a Masters of Education at Harvard University, and a J.D. at Yale.

She became a partner in a well regarded Boston law firm, and served for four years as the V.P. and General Counsel at Harvard University.

She is here today at this symposium because of her judicial legacy. In her fourteen years on the bench she demonstrated those same characteristics which defined her early life; intellectual independence, courage, sharp analysis and empathy. And she demanded the legal system afford all litigants appropriate process and justice.

In 1999 she was appointed the first female Chief Justice on what is not only the highest court in the great State of Massachusetts, but also the oldest continuously functioning Appellate Court in the western hemisphere. Yeah, pretty big shoes there to fill. Sure enough she's got large, large bold shoes.

During her tenure on the bench she presided over many notable cases such as Salvas v. WalMart, upholding employees' rights to bring class action suits; Commonwealth v. Woodward, ensuring that the results in every criminal case are consonant with justice; cases extending broader rights to persons with disabilities under the Massachusetts Anti-Discrimination Statute, just to name a few.

But she will always be known to both her admirers and her detractors as the jurist who wrote Goodridge v. The Department of Public Health, declaring that the Massachusetts Constitution does not permit the State to deny citizens the right to same-sex marriage.

The girl and young woman who protested Apartheid in Africa became the U.S. jurist whose insightful analysis pointed out another form of de jure discrimination.

Always a doer as well as a thinker, Chief Justice Marshall brought her form zeal to the administration of the Massachusetts Courts themselves. She assembled lucrative management panels, inviting in ABA consultants; worked to implement web-based case management systems; instituted a comprehensive program of judicial evaluation; implemented several acts of the justice initiatives; and championed civil and law-related education for the public and for students.

Beyond Massachusetts, she lent her vision nationally to several significant endeavors. In 2002 she was appointed to the ABA Commission on the 21st Century Judiciary, and assisted in producing Justice in Jeopardy, a landmark analysis on the threats to the independence of state courts. From 2008-2009 she served as President of the National Conference of Chief Justices, and as chair of the Board of Directors of the National Center for State Courts.

This past July when she stepped down from the court, a normally self-reserved colleague pronounced, "[h]ow will we go on without her leadership, she is an amazing jurist, she is an amazing leader."

Those who had opposed her non-discrimination efforts and decision in Goodridge declared that they were happy to be out from under Marshall Law. And what is Marshall Law? Governor Weld called it justice for everybody.

The Massachusetts Bar President said, "[s]he's a judge who broke out of the ivory tower to put a human face on the court." The Boston Herald has simply summed up, "[c]hief Justice Margaret Marshall's intellectual integrity never wavered."

Our own in-house expert on same-sex marriage, Professor Stephen Clark, tells me that some of her most significant words are both eloquently prophetic and fiercely analytical, and he pointed me at a couple of her words. She wrote in Goodridge, "lilt is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage." And she pulled no punches by further stating, "[i]t is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been."

Finally, she is a voice for and symbol of judicial independence. After Goodridge she said, "I worry when people of influence use vague, loaded terms like 'judicial activist' to skew public debate or to intimidate judges."

Marshall said, "I worry when judicial independence is seen as a problem to be solved and not a value to be cherished."

So I introduce and call up to speak someone whose independence we cherish and honor her today, Chief Justice Margaret Marshall.

REMARKS

Chief Justice Margaret H. Marshall of Massachusetts

Thank you so much for that generous introduction. Like the two Chief Justices who preceded me, I feel as though I have just listened to my own eulogy.

It is a privilege to be here today with Chief Justice Ternus and Chief Justice Toal, two Chief Justices whom I respect so much. I am going to begin my remarks by telling you why it is such an honor to be with them on this platform.

But first I want to thank Jessie Cardinale, who I did not telephone this morning when my flight was cancelled, and, of course, Javid Afzali. Thank you both for all of your assistance. I have been to many law schools and many law students have met me at an airport; Javid was the first student to meet me driving a black Mercedes. (laughter)

I have prepared remarks, but next I want to pay tribute to my two colleagues. First, Chief Justice Ternus. There have now been several opinions written by the courts of last resort of various states concerning same gender marriage. There is only one court that has decided the issue in a unanimous opinion: The Iowa Supreme Court. That came about because of the leadership of the Chief Justice of that Court, Marsha Ternus. I want to say how deeply sorry I am that she no longer serves as the Chief Justice of Iowa. Marsha Ternus was a great Chief Justice, not because of the decision in that case, although that is part of her legacy, but because she cared so deeply about the delivery of justice to the people of Iowa, to the people of the United States. And I hope that when the history is written, we will see what a wrong turn was taken when she was voted out of office, and make sure that no other judge has to suffer the same fate.

Chief Justice Ternus, on behalf of everyone, thank you for your illustrious public service.

Next, Chief Justice Toal. I listened carefully to Chief Justice Toal. I am a graduate of Yale Law School. Did Chief Justice Toal say that a woman gets admitted to the Yale Law School if she is ugly? (laughter)

Jean Toal, you can hear her on tape and you can read what she has written on paper. Her own history of commitment to equality and human rights is one that is not told very often, nor are we reminded how dangerous it was for Jean Toal to take the positions she took early in her career, practicing law in a southern state. Then the south was very different from the way it is today. And Jean Toal has always shown true courage in advocating for the civil rights of all.

The United States is a remarkable society in this relevant respect. We do not relive our old enmities, decade after decade after decade. We do not revisit our history over and over as one might if one lived in the former Yugoslavia. Conversely, because we do not relive our history again and again, we sometimes overlook our history, and we tend to forget the high price paid by people who sent before us to make ours a more just society. To have as the Chief Justice of South Carolina a woman celebrated for her long commitment to civil rights is a powerful statement of how great this country can be.

Jean, thank you for everything that you have done to make ours a more tolerant society.

I want to talk to you today about why I think state courts are so important, probably more so today than they ever have been in our Nation's history. And I want to make clear at the outset where I stand.

In a nutshell, I agree with Justice Sandra Day O'Connor, herself once a state court judge, who said, "It]he health of the entire legal system, both state and...