SJC Chief Decries ‘Attacks’ On Judges
By Jenna Russell
The Boston Globe

May 23rd, 2005

Marshall defends bench independence

The chief justice of the state Supreme Judicial Court said yesterday that rhetoric about judges destroying the country and the suggestion that court decisions should conform to public opinion are threatening public trust in the judicial system, a cornerstone of democracy.
Justice Margaret H. Marshall, who has been widely criticized as a judicial activist since writing the court’s 2003 decision allowing same-sex marriage, spoke before a crowd of 7,000 at Brandeis University’s 54th commencement. A native of South Africa who fought apartheid before coming to the United States, she said she is not concerned about criticism of individual judges or decisions, but about ‘’attacks leveled at the very foundation of our legal system — the principle that judges should decide each case on its merits . . . independent of outside influence.”

‘’I worry when people of influence use vague, loaded terms like ‘judicial activism’ 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.”

One year after the ruling by the state’s highest court took effect, Massachusetts remains the only state where gay and lesbian couples can legally marry.

The 4-3 decision was seen as a landmark by those on both sides of the marriage debate, and opponents of same-sex marriage across the country moved quickly to build on public outrage in its wake.

In more than a dozen states, voters moved last year to ban same-sex marriage by approving constitutional amendments, against a backdrop of heightened mistrust of the courts. Governor Mitt Romney accused the Supreme Judicial Court of ‘’judicial overreaching” in The Wall Street Journal last year, and President George W. Bush lashed out at ‘’activist judges” — those who use their decisions to push a social agenda — in his State of the Union address.

Marshall did not make specific reference to the same-sex marriage decision yesterday, but she mounted a vigorous defense of the judiciary, calling it remarkable that in this country court decisions are obeyed even when they are controversial, and attributing that obedience to Americans’ ‘’trust in the integrity of our judicial system.”

‘’Americans, thousands of us every day, bring our conflicts to court because we believe we will receive a fair hearing and be treated equally by the judges… whose sole allegiance is to the rule of law,” she said. ‘’Gratuitous attacks on judges undermine that trust.”

Marshall endorsed comments made last week before the Senate Judiciary Committee by Joan H. Lefkow, the federal judge from Chicago whose mother and husband were killed in February by a man whose case she had dismissed. Lefkow cautioned against the extreme tenor of recent rhetoric and its tolerance by elected officials, and singled out for criticism comments that televangelist Pat Robertson made recently on ABC’s ‘’This Week.”

Marshall did not name Robertson in her speech, but quoted his statement that judges ‘’destroying the fabric that holds the nation together” are a threat ‘’probably more serious than a few bearded terrorists who fly into buildings.”

‘’Judge Lefkow called on members of the Senate Judiciary Committee to ‘publicly and persistently repudiate gratuitous attacks on the judiciary,’ ” Marshall told graduates and their families in her keynote address. ‘’I would urge you to do the same.”

The speech was warmly received by an enthusiastic crowd at Brandeis, where student speakers and the university president, Jehuda Reinharz, stressed the importance of social activism. Marshall began with a joke about the blue and white balloons suspended from the Gosman Sports Center ceiling. She said she liked the colors, which included ‘’no red states” — winning a big laugh.

A spokesman for Romney declined to comment yesterday on Marshall’s speech. But some analysts accused Marshall of ‘’muddying the waters” with her suggestion that critics want polls to drive judicial decisions. Judicial activism ‘’doesn’t have anything to do with whether their opinions are popular or unpopular,” said Brian Camenker, director of Article 8 Alliance, a Waltham group founded to remove Marshall and the other three justices who ruled for same-sex marriage from the bench.

‘’ ‘Activist judges’ is a specific term that refers to judges who rule outside the rule of law,” he said. ‘’It has to do with whether they use objective, legal, constitutional means to base their decisions.”

Some legal scholars believe courts must base their decisions strictly on specific language found in the constitution. Others say such an approach is impossible, because most constitutions did not anticipate current legal questions.

Some critics have said the same-sex marriage ruling in Massachusetts had no basis in the state’s constitution. But one reason cited by the court for its decision was the state constitution’s equal rights amendment, which says all people are born equal and have certain unalienable rights.

Marshall, who was awarded a doctor of laws degree at the commencement, came to the United States in the 1970s, attended Yale Law School, and later served as Harvard’s general counsel. She was appointed to the Supreme Judicial Court in 1996 and became chief justice in 1999, the first woman to hold the position in the court’s 313-year history.

Yesterday, Marshall asked graduates to undertake ‘’small acts” to promote understanding of the value of judicial independence.

‘’Each new generation must decide, each of you must decide, whether to embrace, to protect the rule of law, or to repudiate it,” she said. ‘’And make no mistake, inaction and indifference are acts of repudiation.”

Globe staff reporter David Abel contributed to this report.

© Copyright 2005 Globe Newspaper Company.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Rehnquist Decries Political Threats
By David Savage
Los Angeles Times

January 1st, 2005

Chief Justice William H. Rehnquist said in a statement to be released today that judges must be protected from political threats, including from conservative Republicans who maintain that “judicial activists” should be impeached and removed from office.
The public, the media and politicians are free to criticize judges, Rehnquist said, but politicians cross the line when they try to punish or impeach judges for decisions they do not agree with.

“The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction,” the ailing chief justice said in his traditional year-end report on the federal courts.

“A judge’s ‘judicial’ acts may not serve as a basis for impeachment. Any other rule would destroy judicial independence,” Rehnquist said. “Instead of trying to apply the law fairly, regardless of public opinion, judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them.”

As the chief justice of the United States, Rehnquist leads the federal judicial system as well as the Supreme Court. Since taking office in 1986, he often has used his end-of-year report to set forth his views on controversies affecting the judicial system, including the controversy over political leanings of judges.

Despite Rehnquist’s reputation for conservatism, he has been just as willing to fault Republicans as Democrats when their actions and ideas threaten the courts.

In the late 1990s, he faulted Senate Republicans for blocking votes on the judicial nominees of former President Clinton. More recently, he faulted Senate Democrats for blocking votes on President Bush’s nominees.

In both instances, he said the nominees deserved a hearing and an up-or-down vote.

The chief justice, 80, has been absent from the Supreme Court since he disclosed in late October that he was being treated for thyroid cancer and there was speculation that he was about to announce his retirement.

But Rehnquist made only a brief reference to his illness in his end-of-year statement.

“On a personal note, I also want to thank all of those who have sent their good wishes on my speedy recovery,” he wrote.

Court officials said he has continued to work at home. And to the surprise of some people, he also has announced he plans to give the oath of office to Bush at his second inauguration on Jan. 20.

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A Big Question About Clarence Thomas
By Douglas T. Kendall
The Washington Post

October 14, 2004

A little-noticed bombshell was dropped by Justice Antonin Scalia in a recently released biography of Justice Clarence Thomas. It poses an interesting dilemma for President Bush this election season, in that it raises the question of whether he should continue to cite Thomas as one of his model Supreme Court justices.

The evidence, of course, suggests that a repudiation of Thomas by the president is extremely unlikely. Indeed, Ken Foskett, the author of “Judging Thomas: The Life and Times of Clarence Thomas,” claims that top Bush administration officials have discussed with Thomas the possibility of his succeeding William Rehnquist as chief justice.

But Scalia’s pointed comments to Foskett complicate Bush’s support for Thomas considerably. Specifically, Scalia told Foskett that Thomas “doesn’t believe in stare decisis, period.” Clarifying his remark, Scalia added that “if a constitutional line of authority is wrong, he would say let’s get it right. I wouldn’t do that.”

Stare decisis is a fancy Latin term that stands for a bedrock proposition of U.S. law: that the Supreme Court will uphold precedent and not disturb settled law without special justification. As Justice Thurgood Marshall explained for the court in 1986, stare decisis is the “means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.”

Four years ago, Rehnquist echoed Marshall in a case that reaffirmed the Miranda warning given before police interrogations, stating that stare decisis “carries such persuasive force that we have always required a departure from precedent to be supported by some ’special justification.’”

Stare decisis is not and should not be an ironclad rule — otherwise Plessy v. Ferguson, which upheld segregation, would still be on the books. But almost everyone agrees that respect for the doctrine is indispensable for a Supreme Court justice. As Thomas himself explained at his confirmation hearing, “stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision making, I think it is a very important and critical concept.”

It is unlikely that any nominee of any president would be confirmed to the Supreme Court if he or she admitted to a disbelief in the doctrine of established case law. Court watchers know that Scalia’s statement about Thomas goes to the heart of a jurisprudential chasm that separates the court’s two most conservative justices. Scalia is fiercely conservative, but by and large he judges within the parameters of the rules laid down by predecessors. Thomas rarely appears to feel so confined.

The proof is in 35 lone Thomas opinions that express a willingness to reexamine a breathtaking range of well-settled constitutional law. A little-known but telling example is a 1998 opinion by Thomas that expresses a willingness to reexamine the court’s opinion in Calder v. Bull, which decided that the Constitution’s prohibition against retroactive punishments applies only to criminal (not civil) laws. Regardless of what one thinks of the merits of the case, it is a unanimous 1798 opinion by the court that has not been seriously challenged in more than 200 years. It is the dictionary definition of established case law.

Far better known is Thomas’s concurrence in United States v. Lopez, where, alone among the justices, he expressed a willingness to reexamine fundamental aspects of the court’s jurisprudence under the Commerce Clause of the Constitution. This clause — granting Congress the authority to regulate commerce “among the several states” — is the principal power used by the federal government to protect civil rights, worker safety and the environment. Thomas’s views, if adopted by the court, would call into question fundamental statutes in all these areas. As Justice Anthony M. Kennedy noted in a separate opinion, “the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature.”

Reading a Thomas opinion can feel like hitting 100 mph on a deserted highway: thrilling (or terrifying, depending on your perspective) but still a bad idea. The excitement of approaching every constitutional question anew comes at the cost of a stab to our constitutional tradition. No president should accept this trade-off.

The writer is executive director of Community Rights Counsel, a public interest law firm.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)