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SJC chief justice counters 'judicial activism' charge

The chief justice of the Supreme Judicial Court defended the judiciary yesterday against the charge of "judicial activism" that has been leveled by President Bush and Governor Mitt Romney since the ruling that legalized same-sex marriage in Massachusetts.

Margaret H. Marshall, the author of the landmark ruling, also told a Greater Boston Chamber of Commerce breakfast that she opposes a trend around the country toward elected judges, and she dismissed what she called "attack politics" that sometimes ensnares judges.

"I don't think they are activist judges," Marshall said. "I think they are judges doing their constitutional duty."

Asked by a reporter about Romney's criticisms of overreaching by the SJC, Marshall said: "The governor of Massachusetts is a citizen and he, like all other citizens, has protections of the First Amendment and he can say what he wants to say. That's one of the great advantages of living in a democracy."

Marshall did not mention the decision on gay marriage directly, nor did she single out Bush or Romney by name, but her remarks amounted to a defense of an independent judiciary two weeks before voters go to the polls. Bush and Romney have called for a federal constitutional amendment banning same-sex marriage as a means to outflank "activist judges."

Romney, interviewed yesterday, said he agreed with Marshall that the judiciary should be as independent as possible. However, he reiterated his opposition to Marshall's same-gender marriage ruling as a dangerous overreaching of judicial authority.

"I don't think we should elect judges," Romney said. "I do think we should have an independent judiciary. I think those of us who appoint judges should look for individuals who will interpret the constitution and the laws of the land strictly and will not branch off on their own social agenda for something that they may choose to promulgate. That's the job of the Legislature, to decide what the social direction of our country will be. The Legislature makes laws, the courts should interpret them, and I think our Supreme Judicial Court went beyond that boundary."

In her prepared remarks, Marshall said: "Judges do become the focus of attack politics. It has been so since our country's founding and is certainly evident in the heated political climate today."

But, she added, "It would be foolish, in my judgment, to heed the voices of those who would curtail a judge's independence. . . . It would be foolish to tinker with the [John] Adams model of constitutional government that has served us so well for more than two centuries."

She told business leaders that "an independent judiciary, sustained by public trust and commitment, is good for business."

Marshall also said she strongly opposes attempts by any politicians to establish so-called litmus tests for judicial candidates on issues such as gay marriage or abortion.

"I think that's quite dangerous," Marshall said. "Asking judges to express their views before they are appointed . . . seems to me to be most unwise."

Bush opposes abortion rights but has said he would not impose a litmus test in appointing federal judges. The Democratic contender, Senator John F. Kerry, said he views abortion as a fundamental right, and said in the third presidential debate: "I will not allow somebody to come in and change Roe v. Wade."

Marshall also fretted about the practice in many states of electing judges who raise money to finance campaigns and thus potentially compromise their judicial objectivity.

According to the National Conference of State Legislatures, eight states elect judges in partisan elections, and 13 more hold nonpartisan elections. But that number could increase as legislatures nationwide debate measures to increase accountability of the courts, including elections.

In Massachusetts, Republicans in the Legislature this year proposed a constitutional amendment calling for the election of judges, but Democrats blocked the measure from coming to a vote. The Legislature narrowly passed a proposed ballot question that would allow voters to decide whether to ban gay marriage, but it must be passed again in the coming session before appearing on the ballot in November 2006.

Marshall wrote the 4-3 decision that made gay marriage legal in Massachusetts on May 17. A native of South Africa, she was appointed to the SJC in 1996 by Governor William F. Weld, a Republican, and was appointed chief justice in 1999 by Governor Paul Cellucci, another Republican.

Legal scholars yesterday said Marshall's comments fall into a classic formula: A court issues a controversial ruling, politicians assail the court, and the judges respond with a general defense of their branch of government.

But the scholars were divided yesterday on what, exactly, Marshall may have intended by offering her comments in the midst of an election season, and what, exactly, she was referring to when she talked about "voices of those who would curtail a judge's independence."

Cass R. Sunstein, a professor at the University of Chicago Law School and author of "One Case At A Time," a book critical of liberal and conservative judicial activists, said he thought Marshall's comments were a veiled reference to efforts by conservatives in Congress to forbid federal judges from declaring the federal Defense of Marriage Act unconstitutional.

"If she's nervous about the efforts to curtail the courts in Congress, she's on pretty good ground," Sunstein said. "I assume she's not saying the charge of judicial activism is illegitimate. She's not saying Kerry's right, Bush is wrong, she's not talking about the federal amendment. She's just saying the court is not lawless."

Sunstein, a Newton native, also said he saw Marshall's comments as "pretty cautious," and moderate enough to keep the chief justice out of the political fray at election time.

But Christopher Wolfe, a political science professor at Marquette University and a critic of Marshall's ruling on same-sex marriage, said Marshall's comments were calculated to influence the political debate, and that she was "intellectually dishonest" to invoke John Adams because the author of the Massachusetts constitution never envisioned the legalization of gay marriage.

"Adams was talking about something perfectly reasonable; he wasn't talking about judges as policymakers," said Wolfe, who edited a new book titled, "That Eminent Tribunal: Judicial Supremacy and the Constitution.

Yale University law professor Akhil Reed Amar, author of a forthcoming book, "America's Constitution: A Guided Tour," said tensions between lawmakers and the courts reach back at least to the US Supreme Court's Dred Scott decision on slavery that helped hasten the nation's descent into civil war.

But he also argued that the tension between the courts and elected lawmakers is probably tied to what he sees as the growing role of the judiciary in America. In its earliest years, the United States had five members of the US House of Representatives for every federal judge, Amar said. Today, he said, there are two federal judges for every congressman.

What's more, he said, the first 80 years of the nation saw the courts overturn just two acts of Congress. Today, by contrast, the courts do so an average of four times a year.

"I think the federal judiciary is more powerful today than it ever has been, more powerful than in the era of John Adams, whom [Marshall] invoked," said Amar, who described himself as an admirer of Marshall's.

Marshall said she was happy that politicians feel free to criticize the decisions issued by her court and others, saying "one of my chief concerns" has been "increasing the accountability of our courts to the public we serve."

"In most countries . . . criticism of judges is severely curtailed," Marshall said in response to questions. "Do I think criticism of judges is unwarranted? No. But I think there is good criticism and bad criticism." 

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