PROFILE OF MASS. CHIEF JUSTICE: From Legal Affairs

At the close of a dinner in her honor in February, Margaret Marshall, the chief justice of the Massachusetts Supreme Judicial Court, stood in front of the podium in a well-appointed dining room at New York University Law School, her white hair adding inches and style. She wore a tailored black pantsuit, black heels, and double strands of pearls around her neck and one wrist. Her offer to take a few questions was greeted by a moment of shy silence. "My recipe for lobster?" she asked with a smile.

A young NYU law professor, Doni Gewirtzman, tentatively raised his hand. "What's happening now in Massachusetts is a fascinating study in law and politics," he said. "I'm interested in your thoughts about the political consequences of your decision."

Gewirtzman was referring to Goodridge v. Department of Health, the decision handed down the previous November by Marshall and a bare majority of her court ordering Massachusetts to perform gay marriages beginning in May. ...

"The very first case heard by the Massachusetts Supreme Judicial Court involved slavery," she said. "A man by the name of Quock Walker came to the court in 1780." Walker was a slave who had run away to work for a neighbor. When his master recaptured him and beat him, he sued for assault. To win his case and hold the master accountable, Walker had to convince the court to declare him free. "He said, 'Look, it says here in your state declaration of rights: "All men are created equal," ' " Marshall said. "So the question for the court was: What are you going to do with slavery in 1780? 'Excuse me, Judge, it says equal.' " Marshall was miming Quock Walker by pointing to her palm as if the words were written there. "Judge Cushing said, 'You have curly hair and thick lips, but you look like a man to me.' " Marshall paused and her voice shook a bit. "Do I think that was a political decision? I think it was a constitutional decision." ...

But the story as Marshall tells it is well suited to justifying her court's decision to require gay marriage. The myth of Quock Walker celebrates a court that led the public to a watershed conclusion that it should have, but hadn't, reached on its own. And it stands on the old and hallowed ground of ending slavery--safer territory than more recent activist decisions like Roe v. Wade or the Massachusetts court's 1980 decision to abolish the death penalty. Safe ground is the kind that Marshall prefers to stand on. "I'm a conservative judge, in the sense of conserving institutions and being extremely cautious in every decision I make," she told me. ...

In the wake of Goodridge, then, neither side of the aisle thinks of Marshall as careful and restrained. Up until the gay marriage decision, however, she had been just that. For most of her life, Marshall played by the rules of the establishment. She made her reputation as a lawyer with strong corporate ties and a deft political touch.

Now, though, Marshall's reputation--and the reputation of her court--will turn on a principle, though she's not eager to say which one. She speaks passionately about "the right to be who you are," but she doesn't connect that evolving right directly to gay marriage. Like many judges, she tries to separate the "constitutional" from the "political" by claiming to wall off her judicial decisions from her personal convictions.

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posted by Eve at 3:44 PM | link

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