Shipping up to Boston: the voting of the Massachusetts Supreme Judicial Court in nonunanimous criminal cases from 2001-2008.

AuthorBlackwell, Kevin

    Republican appointed justices became a super majority on the Massachusetts Supreme Judicial Court in 2001. (1) During his four years in office, Governor Paul Cellucci (R) was presented with the extraordinary opportunity to completely reshape the highest tribunal of Massachusetts. (2) In just two years, Governor Cellucci appointed four of the seven justices of the Supreme Judicial Court. (3) While not every one of Governor Cellucci's appointees was a registered Republican, all of his nominees shared a conservative judicial ideology that the governor favored. (4) In the three years prior to Cellucci's term as the Governor of Massachusetts, Governor William F. Weld (R) appointed three justices to the Massachusetts Supreme Judicial Court. (5) Two of those justices remained on the court after Governor Cellucci's appointments, creating a Republican appointed majority of six on the seven-member court. (6) In 1996, Democratic governors had appointed five out of the seven justices on the court. (7) In just five years, the Massachusetts Supreme Judicial Court had apparently gone from one ideological extreme to the other.

    This study is intended to demonstrate trends in how the Massachusetts Supreme Judicial Court decided non-unanimous or divided criminal cases over an eight-year period. This study aims to answer two questions about how those criminal appeals were decided. First, how frequently did the court and its justices side with the defendant in those cases? Second, how frequently did individual justices agree with their colleagues in those cases? The super majority existed during the first seven years of this study. In the last year of the study, the composition of the court changed slightly with an appointment of a justice by a Democratic governor. (8) Accordingly, this change in membership will also be explored to determine what impact this appointment had on the way that the court decides criminal appeals when the court is divided.

    The study will be organized as follows: Part II provides some background information on the Massachusetts Supreme Judicial Court, including general information regarding composition, tenure, and the appointment process. Additionally, a brief history of the membership of the court is provided. Part III describes the methodology utilized in this study. Specifically, it explains the reasoning behind examining only non-unanimous cases, how those cases were selected, and how the data from those cases was collected and analyzed. Part IV discusses how frequently the justices and court sided with the defendant in divided criminal cases. Part V discusses how successfully individual justices are in getting their colleagues to agree with their written opinions in these cases. Part VI discusses some recent developments and offers concluding remarks on the effect of the most recent appointment on divided criminal cases. Appendix A provides the complete findings from this study. Appendix B contains the observations and data collected from individual cases.


    1. Generally

      The Massachusetts Supreme Judicial Court "consist[s] of six associate justices and one chief justice." (9) Only four justices need be present for a quorum necessary to decide all matters to be heard by the court. (10) The justices of the court "are appointed by the Governor [to] life terms," (11) but are subject to mandatory retirement upon reaching the age of seventy. (12) The Governor's Council must confirm appointees in order for them to take office. (13) The Governor's Council consists of eight members and the Lieutenant Governor. (14) The eight members are elected to two-year terms from special districts. (15) The legislature has no formal role in the judicial selection process, and has virtually no opportunity to influence the decisions of that process. (16) Outside rare newspaper articles, the selection process receives little attention in the legislature or the media. (17) Massachusetts and New Hampshire are the only two states that continue to maintain a governor's council to appoint justices to their high courts. (18)

    2. Court Membership

      In 1996, the Massachusetts Supreme Judicial Court (hereinafter "SJC") was composed of Chief Justice Liacos, (19) Justice Wilkins, (20) Justice Abrams, (21) Justice Lynch, Justice O'Connor, (22) Justice Greaney, (23) and Justice Fried. (24) Five of those seven justices were appointed by Democratic governors. (25) Justice Liacos retired in 1996. Governor Weld appointed Justice Wilkins to the vacant chief justice post, (26) and appointed Justice Marshall to fill the vacancy in the court. (27) Governor Weld then appointed Justice Ireland in 1997 to succeed Justice O'Connor. (28)

      In 1999, Governor Cellucci appointed Justice Marshall to the post of chief justice to fill the vacancy left by Chief Justice Wilkins's retirement. That same year, Governor Cellucci appointed Justice Spina and Justice Cowin to fill the vacancies in the court left by the retirement of Chief Justice Wilkins and Justice Fried. (29) In 2000, Governor Cellucci appointed Justice Sosmon to fill the vacancy left by the retirement of Justice Lynch. (30) In 2001, Governor Cellucci made his fourth appointment to the court by appointing Justice Cordy to replace the retiring Justice Abrams. (31)

      At the start of 2001, the SJC was composed of Chief Justice Marshall, Justice Greaney, Justice Ireland, Justice Spina, Justice Cowin, Justice Sosmon, and Justice Cordy. (32) For seven years the court's membership remained the same, until Justice Martha Sosmon passed away in March of 2007. (33) Governor Deval L. Patrick (D) appointed Superior Court Judge Margot Botsford to fill the vacancy left by Justice Sosman's death. (34)


    This study examines only non-unanimous decisions in criminal cases. That means that it only examines criminal decisions issued by the SJC that contained at least one separate opinion, concurring or dissenting, in addition to the majority disposition. Limiting a study to non-unanimous opinions is believed to provide more insight into the judicial philosophy of judges or justices. (35) Unanimous opinions largely represent compromises between the judges or justices on a particular court. (36) "Divided decisions are a window into the judicial decision-making process." (37) Unlike unanimous decisions, divided decisions reflect the "unique values and beliefs" of individual justices and "offer an opportunity to delve into [their] individual judicial philosophies." (38) Even when a judge writes a concurring opinion, it can demonstrate that he feels particularly strong about the issue. (39) Essentially, divided decisions are worth looking at for two reasons. First, they provide an insight into how an individual judge will decide a close case or tough call, and second, they can provide an insight into how judges will align themselves with their colleagues in those cases.

    The criminal decisions used in this study were gathered through the utilization of an online database of Massachusetts state cases. Specifically, a search was tailored to find all decisions from the SJC in a given year containing the word "criminal" with a concurring or dissenting opinion. All of those decisions were examined, and any decisions that dealt with a criminal defendant where any aspect of the detention, trial, conviction, or sentence was being challenged were admitted into the study. As such, some decisions were excluded from the study, because they failed to involve a criminal defendant and a challenge to some aspect of his detention, trial, conviction, or sentence. (40) Ultimately, fifty-one opinions qualified for this study between January 1, 2001 and January 1, 2009. (41)

    For each decision, the vote (or votes) of each justice in attendance was recorded. (42) The author of the respective majority, concurring, or dissenting opinion was noted as well. (43) For each opinion in each case, it was determined whether or not the outcome favored the criminal defendant or the prosecution. (44) In cases where the outcome was mixed, i.e., the defendant won on at least one ground, but lost on the other grounds, it was determined what issue(s) the justices were concerned with in their separate opinions. If the result of that issue favored the prosecution, then the opinions were categorized as pro-prosecution, or vice versa, but none favored the defendant. (45) The analysis offered, however, does not consider the actual substance of the opinions. Accordingly, the substantive reasons underlying the voting of each justice are not explored. (46)

    As stated earlier, this study is concerned with tracking two aspects of divided cases: the rate opinions favored the defendant, which will be referred to as the pro-defendant rate throughout this article, and the rate at which justices agreed with their colleagues, which will be referred to as the agreement rate for short. To determine the pro-defendant rate of an individual justice, the number of votes for the defendant by the justice was tabulated and divided by the total number of non-unanimous cases the judge participated in. (47) Similarly, to determine the agreement rate of one justice to another, the number of times a justice joined an opinion was tabulated and divided by the total number of opinions by that justice authoring the opinions. (48) All results were multiplied by 100 to yield a percentage. (49) In short, simple arithmetic was used to examine the trends discovered in this study. (50)


    While this study did yield numerous findings regarding the prodefendant rates, or how frequently the court or justices sided with the criminal defendant, two are of particular interest. The first finding of interest was the frequency at which the court, in deciding divided cases in favor of the criminal defendant, fluctuated over the eight years covered. The second finding that was...

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