On November 18, 2003, the Massachusetts Supreme Judicial Court decided Goodridge v. Department of Public Health. With three of the seven Justices dissenting, the Court held that the denial of marriage licenses to same-sex couples violated the Massachusetts constitution. Conservatives across the Commonwealth were outraged, and decried the “activist” Justices. Massachusetts conservatives vowed to overrule Goodridge with a Constitutional amendment. This never happened. To this day, the Goodridge decision remains good law in Massachusetts: same-sex couples are free to marry. On this issue, the Supreme Judicial Court was the sole and final arbiter.
This week, Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall – who authored the majority opinion in Goodridge – announced her retirement from the Court. Although Justices of the Supreme Judicial Court face mandatory retirement at age seventy, Chief Justice Marshall has chosen to retire four years early. The impending retirement of Chief Justice Marshall highlights one of the lasting legacies of a Massachusetts Governor: the ability to appoint jurists who will render influential decisions for years to come, often long after the Governor has left office.
The seven Justices of the Massachusetts Supreme Judicial Court are appointed by the Governor, with the advice and consent of the Governor’s Council. The Governor’s Counsel consists of eight elected individuals and the Lieutenant Governor, who presides over the Governor’s Council.
Of the seven Justices currently sitting on the Supreme Judicial Court (including Marshall), four (Cordy, Cowin, Ireland and Spina) were appointed by Republican Governor Cellucci, two (Botsford and Gants) were appointed by current Democrat Governor Deval Patrick, and Chief Justice Marshall was appointed by Republican Governor Weld and elevated to Chief Justice by Governor Cellucci.
Interestingly, of the four Justices who joined to issue the majority opinion in Goodridge in 2003, three (Marshall, Cowin and Ireland) were appointed by Republican Governors Weld and Cellucci. The fourth, Greaney, was appointed by Democrat Governor Dukakis.
All three of the dissenters in Goodridge (Cordy, Sosman and Spina) were appointed by Republican Governor Cellucci.
In the seven years since Goodridge, Justice Sosman died and Justice Greaney retired. They were both replaced by Justices (Botsford and Gants) appointed by Governor Patrick. These appointments arguably make the court more liberal than the Goodridge Court. Chief Justice Marshall’s retirement now ensures that soon there will be at least three Justices serving on the Supreme Judicial Court appointed by Governor Patrick.
Conservatives and opponents of judicial activism cannot afford another liberal appointee to the Court, because – and make no mistake about it – another Goodridge is coming. Obviously, it won’t be another same-sex marriage case (that issue is pretty well settled at this point). But the next cause celebre may involve immigration, abortion, gun control or transgender rights. And the case may come next year, in five years or next decade.
The good news is that because of mandatory retirement, the winner of the election in November will have the opportunity to shape the Court that will decide the next Goodridge. Justices Cowin and Ireland will face mandatory retirement (in 2012 and 2014, respectively) in the first term of a Cahill or Baker administration. Justices Spina and Botsford will face mandatory retirement (in 2016 and 2017, respectively) in the second term. Justice Cordy will turn seventy soon thereafter, in 2019. The most recent appointee, Justice Gants, does not face mandatory retirement until 2024.
If the Governor elected in November serves two terms, he will have the opportunity to appoint at least four justices – a majority – to the Supreme Judicial Court (and perhaps more due to early retirement or premature death). His influence on Massachusetts law may last for decades to come.
There is a real opportunity here in Massachusetts to take the Supreme Judicial Court in a new direction. Perhaps, similar to the United States Supreme Court, we can one day look upon a Court whose Justices favor a strict interpretation of our Constitution, and are loathe to extrapolate rights and privileges that are not contained within the four corners of the document. Unfortunately, the only say that we have on this matter is with our vote for Governor and Lieutenant Governor in November.
Thus, the question becomes: Which candidate do you believe is most willing to take the SJC in this new direction?
Charlie Baker? It’s telling that five of the seven current Justices of the Supreme Judicial Court – a liberal court, by all accounts – were appointed by Baker’s mentors, Bill Weld and Paul Cellucci. During his campaign, Baker’s disdain for social conservatism has been well documented (and undisputed). In his first major decision as a gubernatorial candidate, Baker selected as his running mate – and the man who would oversee the Governor’s Council – Richard Tisei. Tisei’s pursuit of a liberal, activist agenda is also well documented (e.g., his sponsorship of the ‘Bathroom Bill’) and Tisei is the proud owner of a 100% rating from NARAL.
Is there really any doubt that Baker and Tisei would appoint liberal, activist judges that conservatives would criticize if those same judges were appointed by Patrick and Tim Murray?
On the other hand, Tim Cahill – a former Democrat – is best described as a social moderate. Nothing in his history suggests that he will pursue an activist social agenda. In contrast to Baker, in his first major decision as a gubernatorial candidate, Cahill selected as his running mate – and the man who would oversee the Governor’s Council – Paul Loscocco, a former Republican and a life-long conservative. Loscocco is far and away the most conservative candidate running for Governor or Lieutenant Governor. Recently, the Independent ticket of Cahill and Loscocco were endorsed by Massachusetts Citizens for Life, one of the most conservative organizations in the Commonwealth.
Who is more likely to appoint Justices in the mold of Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito, the leaders of the conservative block of the United States Supreme Court? The man who proudly declares that he is “to the left” of President Obama (!) on social issues, or the man who has called out the Governor for his liberal extremism, and who has welcomed social conservatives with open arms?
It’s a pretty easy choice.