Bolch Judicial Institute
Bolch Judicial Institute
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Judgment Calls

Episode 5: Justice Margaret H. Marshall

April 17, 2020 | Season 1, Episode 5 | 44:50

Highlights

  • Justice Margaret H. Marshall talks with David F. Levi about her remarkable life and career, growing up under apartheid in South Africa, and becoming the first woman to hold the position of chief justice of the Massachusetts Supreme Judicial Court.
  • Justice Marshall reflects on her groundbreaking 2003 opinion in Goodridge vs. Department of Public Health, which made Massachusetts the first state to legalize same-sex marriage and was later cited by the U.S. Supreme Court in the landmark decision Obergefell v. Hodges.
  • Levi and Marshall also discuss the impact of technology on the courts, judicial elections vs. judicial appointments, term limits, her role as chief justice, and several Supreme Judicial Court cases, such as the 1783 decision that abolished slavery in Massachusetts (one of the first cases to do so) and recent cases involving questions of fertility and secretly recording police officers.

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Transcript

This transcript has been lightly edited for clarity.

Levi: Hello, and welcome to Judgment Calls. I’m David Levi, director of the Bolch Judicial Institute at Duke Law School. My guest today is Margaret Marshall, who was Chief Justice of the Massachusetts Supreme Judicial Court from 1999 to 2010. She is one of our most distinguished judges and lawyers and has had a remarkable career and life. She grew up during some of the worst days of apartheid in South Africa, then came to the United States as a graduate student in the late 1960s. She eventually practiced law in Boston, became the general counsel to Harvard University, and then was appointed as an associate justice and then the first woman chief justice of Massachusetts.

Her groundbreaking 2003 opinion in Goodridge vs. Department of Public Health recognized a right of same-sex couples to marry in Massachusetts. The Goodridge opinion rests on the Massachusetts constitution and came fully 12 years before the U.S. Supreme Court, following her lead, came to a similar conclusion under the 14th Amendment of the U.S. Constitution. What an honor to have you here, Justice Marshall. Welcome to Judgment Calls.

Marshall: Thank you, David. It’s both a pleasure and an honor to be here.

Levi: Well, it’s our honor. Let’s start by talking a little bit about your growing up in South Africa. You became a leading student opponent of apartheid. And, can you speak about how that happened and how your views on apartheid evolved

Marshall: I grew up in a small village in South Africa. My family had lived in South Africa for many generations. My family was white, and conservative. By conservative, I don’t mean pro-apartheid. Just conservative. My father went to work in the morning and my mother was a stay at home mother. I never thought that I would become involved at all in politics or anti-apartheid politics. Then, in 1962, I came to the United States as a high school exchange student and spent a year living in Wilmington, Delaware. I do think that was the moment that my life changed. President Kennedy was in the White House, the Civil Rights movement was going full force; I had an opportunity to listen to Dr. Martin Luther King on television and radio. I was shaken, really, by the robust way that Americans talked about and considered and argued about their government. By the time I returned to South Africa the shades had been lifted off my eyes. I went to University in Johannesburg. South Africa. At that time, the mid 1960s, was really at one of South Africa’s worst moments. All of the major political opposition parties had been outlawed, President Mandala and his cohorts had been sent to prison, for life. We were not going to see them again. Little by little I became involved in student politics.

Many of the student leaders who were involved in politics were either arrested, many of them were arrested, or were “banned”. A “banned” person had to remain at home, couldn’t attend university or travel in the country, or see visitors. That had a big impact on me and drew me deeper into student politics.  At the end of the 1960s I was given a scholarship to study abroad.  I wanted to go to Oxford, which is where all of the men that I knew went. But at that time, the Oxford colleges to which I wanted to go, Balliol, University College or New College, for example, didn’t admit women. Because I had already been in the United States, I said I wanted to come to Harvard. [It] seemed like a great university to me.

Levi: So that’s what happened. You came to Harvard, and you initially were going to study art history, I think.

Marshall: That’s correct.

Levi: And then eventually you decided that was maybe not your life’s work, and you found the law.

Marshall: I did. It really was “finding” the law. From the very first day, it seems strange to say this, but from the first day at law school, I knew that I had found my calling, my profession.

Levi: When you graduated from law school, I gather during law school you’d had an experience of being in court. Maybe in the summer or something of that sort.

Marshall: Right.

Levi: I think this was in Boston, and I know you have a bit of a story about how the judges responded to you.

Marshall: Well, at that time in Boston, it would be fair to say that many of the judges and court personnel were Irish. I speak in an accent which Americans assume to be English. It’s not. I felt that arguing to a jury or trying to persuade a judge in a criminal context was not going to be an area where I would be most successful.

At the time I didn’t know any lawyers; I didn’t know any judges. I had to find my own way. There were no publications like the American Lawyer, there was no information about what lawyers actually did. I ended up practicing law at a commercial law firm. To my great surprise, I loved it. I loved the clash of legal ideas. I was very happy.

Levi: You see a lot of life, I think, in a law firm. The things that you wouldn’t normally encounter in your own life.

Marshall: That is correct. In addition, I always advise young lawyers who are in large law firms to get involved in bar association activities — for a couple of reasons. It gets you out of the tall towers and down onto the street. And through some of the great bar associations, one of which the is Boston Bar Association, which goes back to John Adams, you meet people in your field. In my case, my practice was in “the law of ideas”, intellectual property, broadly speaking.  I met other lawyers in my field there.  Bar associations provided opportunities for pro bono work, and to meet judges off the bench. That is where I met the few women judges in Massachusetts at that time. Bar association programs provided me with a great deal of mentoring. Bar associations make a wonderful contribution to the legal profession. Particularly if you are a legal stranger in a city or town, as I was, a bar association is good home to find.

Levi: Were there other women at the firm, or were you one of the very few partners there?

Marshall: I was one of the very few female partners. At Choate Hall & Stewart, my law firm, there were two women — one of whom is now in her 90s, the other in her late 80s — who had joined the firm on the understanding that they could never become partners. Over time, as the pressure built to admit women as equity partners, both women became partners at Choate. They were the second and third or third and fourth women partners at any major law firm in Massachusetts. I began to practice law as history was beginning to turn.

Levi: You were part of that wave of remarkable women who came into the law and succeeded mightily. Because there are many people of your, many women of your generation who were the first.

Marshall: Right.

Levi: But did it so well, and went on to greatness.

Marshall: We “firsts” had this benefit: collectively women were pushing to break down the barriers that excluded us from so many parts of our profession. So yes, several times I was the “first”, sometimes the “second” to fill a position.

Levi: So your specialty in intellectual property and your stature in an important law firm prepared you to become the general counsel of Harvard University, which is an immense university. It’s not just a university, it’s a medical center, huge hospitals and all sorts of things. How did that happen?

Marshall: I loved my work at my law firm where I was engaged in patents and copyrights, and other aspects of intellectual property law.  I had no particular interest in becoming the general counsel of Harvard. I hadn’t really thought about it, I know what the scope of responsibilities would be. But Harvard had a new president and I was invited to meet the him. That seemed like a very good thing for me to do if I was engaged in intellectual property work. I met the new president, President Neil Rudenstine, and I was so impressed with his attitude, his take, what he wanted to do with the university. To my great surprise, several months later, I was appointed the general counsel Harvard.  Accepting his offer was a difficult decision for me because I loved my work at Choate. I also knew that my role in the law firm was important to both the younger women and the younger men. Leaving that was a difficult decision for me.

Levi: One of the aspects of university leadership that I found so interesting when I was dean, particularly, I think, at a private institution, is the relationship with the government. And because these massive private institutions are funded in large part by the federal government, and there’s a web of regulation that surrounds the university. But maintaining its private quality is so important. And I think also that’s something that judges deal with all the time, is this difference between when it is the state and when it is the private person, and a lot of our laws are written in that way. And I’m wondering whether you had that same sense.

Marshall: I certainly did. And in my case, it was for a particular personal reason. All of the universities in South Africa were essentially fully government-funded. I had come from and been educated in a country that didn’t draw a distinction between privately funded, private institutions, and public universities. In South Africa in the late 1950s, the South African apartheid government passed legislation prohibiting the leading universities from admitting any black students. Historically there had been a small number, but very important number of black students at those universities. In response to the new prohibition, those universities joined in a statement defining academic freedom. It said in essence: It made no difference who funds a university. Rather the essential requirements of academic freedom are the right of a university to determine who shall teach, who shall be taught, what should be taught, and how it should be taught.

While I was the general counsel at Harvard, there were a series of cases and statutes that were enacted that called into question those fundamental rights of academic freedom. Let me give you one example. Many universities had a mandatory retirement for faculty at age 70. That had nothing to do with competence. There are wonderful people who were brilliant scholars and teachers continued to be such long past the age of 70. Mandatory retirement at age 70 was a way to make room for new scholars. Universities don’t have an endless pot of money:  if you remain on the faculty until you’re 75 or 80 or 85 or 90 it means that your faculty “slot” is taken and cannot be occupied by someone younger. The [Anti Age Discrimination legislation] became applicable to all institutions of higher learning while I was the general counsel of Harvard, with predictable outcomes.

We’ve seen at universities, both public and private, that it’s very difficult for young scholars to get tenured positions, particularly where they are in disciplines with not many “slots” in any event. Particularly in some science areas, where senior faculty have big laboratories, our younger generation of brilliant scholars are being squeezed out. So the university had decided, you can teach until you’re 70, then we want to make room for younger scholars. And here was the government telling us …

Levi: “You can’t do it.”

Marshall: “You can’t do it.”

Levi: And treating it as a civil rights matter, which makes it even more complex, I suppose. I see this as a continuing issue that weaves its way through the law, in a way, is, how much discretion do the courts permit to entities that have the responsibility for a certain segment of life?

Marshall: Correct.

Levi: Whether it’s a school board that’s trying to integrate its schools or it’s a university trying to manage its faculty or run great labs. How much deference should we show to these institutions, many of which work incredibly well? And are the sort of thing that maybe makes the United States as great as it is, like our private universities, which are amazing. Well, that’s something maybe we can come back to.

If I were writing your biography and I were presenting the appointment as justice and then as chief justice as kind of the pinnacle, or the thing that was meant to be, I would try to draw in your experience of apartheid, your experience in the law firm, and your experience at Harvard and say that these three streams have prepared you to be the wonderful justice that you were. Would that be accurate?

Marshall: I had never in my wildest imaginations thought that I would be a judge. Never.  Harvard is a great international institution. It’s a huge employer, it owns real estate, it has very valuable assets, both at Harvard and in other cities in the United States and around the world. Its faculty come from around the world, half the faculty visit the rest of the world, its students come from around the world. It is a very complex organization. The legal issues presented often have little to do with the academic part of the institution, although we’ve just touched on an important one.

The legal issues were more basic like workers compensation or, here’s one of my favorites. The Harvard Business School is across the Charles River from the main campus. That puts it in Boston, not Cambridge. It turns out that when the Business School was first getting electricity, it was provided its electricity by the Cambridge electric company. When the Business school wanted to vastly increase its electrical capacity because of computers and other reasons…well, let me put it this way, the Boston electric company discovered that the university had been paying Cambridge. Who would have thought that would give rise to a legal issue that lands on the desk of the general counsel?

Levi: Well, how did your appointment to the court come about?

Marshall: The appointment to the court came about in this way. I was telephoned or contacted by the legal counsel to Governor William Weld. Governor Weld had been a law clerk on the Supreme Judicial Court. He cared about the court a great deal. It is also the case that at that time, in 302 years or more, there had been only one woman on the court. The pressures to appoint a woman was high. In Massachusetts the Governor nominates so it is his appointment. I had a call from the Governor’s legal counsel asking me if I would be interested in being considered. Now, I should say immediately that if you are asked in those circumstances, do not assume that this is a guarantee that you will go on to the court. To agree to be considered was a very difficult decision for me because I loved my work at Harvard. But I had a deep reverence for the Supreme Judicial Court, for reasons that relate back to South Africa.

When I was student in South Africa, there were two United States judicial decisions of which I was aware. I was not a lawyer in South Africa, my parents weren’t lawyers, I had nothing to do with the law. I never thought that I would become a lawyer. But there were two decisions from the United States of which I, as a student involved in anti-apartheid activities was aware. The first was, not surprisingly, Brown vs. Board of Education.  The South African apartheid government, as I’ve mentioned, was segregating, double segregating, triple segregating, making it impossible for black students to be schooled with white students or really educated in any way. Here was this great case, Brown, with wonderful statements about why segregation is unequal, inherently unequal.

The second was a case that issued by a court called the “Supreme Judicial Court”. What did I know? I thought it was the same court as the Supreme Court.  I didn’t know there was a federal court, and a separate Massachusetts court. The Massachusetts case, decided in 1783, was a case decided under the new, then very new, Massachusetts constitution, which predates the federal constitution. The Massachusetts constitution opens, or started at the time, with the words, “All men are created equal…” The case was brought by a slave in Massachusetts who challenged his servitude under that provision. (The procedures leading up to how the case came before the court are not relevant.) In 1783, the Supreme Judicial Court of Massachusetts ruled that slavery was inconsistent with the words of the new Massachusetts Constitution. That was the second case of which I knew while I was in South Africa.  A court had outlawed slavery. For that reason, the Supreme Judicial Court had always been a revered institution for me. Yes, I had appeared as a lawyer in the Court. But that wasn’t the reason why I agreed to be considered for appointment to the Court. It was because of its great history, outlawing slavery. It is one of the first cases that, as a matter of law, as a matter of equality, as a matter of legal principle, said slavery is inconsistent with the objective of equality and dignity for all.

Levi: That was an amazing opinion for its time. I think your English friends dispute it because Lord Mansfield had an opinion right around that time.

Marshall: Yes, of course. I respond that Lord Mansfield did not declare slavery inconsistent with a constitutional provision. My English friends and I do have a dispute as to which is the first, Lord Mansfield or the Supreme Judicial Court.

Levi: So, you did become a justice on this really quite remarkable court that’s had amazing justices.

Marshall: I did. It has.

Levi: In its history, including Oliver Wendell Holmes, and others.

Marshall: Benjamin Curtis is one of the greats. He was the dissenter in the Dred Scott decision.

Levi: Right.

Marshall: He came from the Supreme Judicial Court.

Levi: And you were first an associate justice, if that’s the right term, and then you were appointed to be chief justice. And, let’s talk about that role, if you don’t mind. Because, what is it to be chief on that court as opposed to a justice? That’s quite an addition to your responsibilities, I think.

Marshall: It is. The Chief Justice of Massachusetts is responsible for the entire judicial branch. That’s not always the case.  In some states a chief justice is responsible for only its supreme court,

Levi: Right.

Marshall: Not in Massachusetts. The budgets for the judicial branch, how we provide for the translation of over 100 languages of people who appear in Massachusetts courts each year, security, hiring, firing. All of that is ultimately the responsibility of the Chief Justice. It is a very challenging position.

Levi: We’ll talk about your management responsibilities and what you tried to do there. But let’s start with your jurisprudential life. And of course, the Goodridge opinion looms very large. Really a remarkable opinion at the time. What reflections do you have on the opinion, the process, and the reaction?

Marshall: The process was different in Massachusetts from some of the other states. First of all, Massachusetts didn’t have what we call any DOMA legislation, Defense of Marriage Act legislation. That makes a difference.  Second, there previously had been multiple cases involving marriage that were decided by the Supreme Judicial Court under the common law. A court can be its most robust where there is no statutory or constitutional limitation. Massachusetts courts had decided many cases relating to marriage. An example: if an unmarried couple, heterosexual couple, had lived together for a long time, but not married, and had then separated, did one of the parties, not as economically stable as the second, have any right to the assets of the more wealthy partner in the relationship? The Court had already ruled that same-sex couples could adopt, legally adopt, children. There were a variety of ways in which the court had spoken about marriage. A critical one, earlier one, was a ruling that when a woman married, she did not lose all of her property rights, as the law then provided. In many ways, that case had a far bigger economic impact than the same-sex marriage case did.

Next, although the case (Goodridge) was decided under the Massachusetts Constitution, one is cognizant of other rulings. Before Goodridge, in a great opinion by Justice Kennedy, the United States Supreme Court had ruled, in essence, that homosexual conduct was no longer a criminal offense or illegal. The movement toward equality for gay persons was moving forward.

Last, a case similar to Goodridge had been brought earlier in Vermont. There the plaintiffs also had brought a claim for same-sex couples to marry. The ultimate resolution in Vermont had been to permit civil unions. In the wake of that, I think that same-sex couples had discovered that “civil unions” really don’t protect you in the same way as “marriage”. Your partner with whom you have a “civil union” gets taken to the emergency room, you want to go into the room, but the nurse or the doctor doesn’t know what a “civil-unioned” person is. Or there are children in the “civil union”, and one of the partners wants to move to a state far away and wants to take the children. What right does the person who’s being left behind have? There are a variety of ways where marriage is such a settled institution, where everybody knows what it means to be “married”. Massachusetts, in a way, had an advantage because of the experience of civil unions in Vermont.

There’s another, terribly important aspect of this, as well, which we can talk a little bit about. Massachusetts judges are appointed, nominated by the governor, subject to the advice and consent of a statewide elected body, and then serve a single lengthy term. They serve for life, subject to mandatory retirement. I raise that because judges in Massachusetts do not look over their shoulders, worried about whether they are going to be reappointed or reelected, as the case may be.  After Goodridge was decided, it was followed by a New York decision on same-sex marriage (that court ruled the other way), then by New Jersey. That court also ruled other way. Then came Iowa. The five judges on the Iowa Supreme Court decided unanimously that same-sex marriage should be allowed in Iowa, under the Iowa constitution. There was a re-election of three of its justices within a year. All three were voted out.  Why?   Because of a massive campaign, a national campaign, funded nationally, of people who opposed same-sex marriage. You don’t want that.

Levi: So you didn’t get that kind of reaction because you weren’t subject to reappointment or reelection or a retention election or anything of that sort.

Marshall: Well, we were heavily criticized, and I think that’s perfectly fine.

Levi: Yes.

Marshall: Judges are part of our the government. If the United States Supreme Court issues a decision, you can criticize it. Everybody can criticize it. The Massachusetts Governor criticized Goodridge. But the Governor never suggested that he would not obey the order. That’s another thing that we so take for granted in the United States. It’s a relatively recent assumption, that when courts issue orders, we simply obey them. Think about Bush against Gore, which was one of the closest, most bitterly fought cases. The day after the court decided, was the court’s decision criticized? Of course, it was criticized. But nobody suggested that Governor Bush wouldn’t take the oath of office and be sworn in as the President. I don’t think anybody did. There were no troops out on the street. That is a privilege that we have in the United States. It is because I come from another country that I feel so passionately about what we have to protect here, what is so important here. We — you — grow up in this free country. We don’t really realize how free it is until sometimes you go to another country.  But for me, an immigrant, for waves of immigrants, we know. We know.

Levi: Well, and you make such a good point. I know Justice Souter has talked about this in some of his writings, that the Nixon papers case was so important.

Marshall: Absolutely.

Levi: Because President Nixon obeyed the order.

Marshall:  It was important. There was a judicial order for the president to hand over papers that he clearly thought were private.

Levi: Were private. That’s right. Whereas in the 19th century we have some fairly extraordinary examples, whether it’s Andrew Jackson or Abraham Lincoln, of saying, “Well, that’s the court’s opinion. I have a different opinion.”

Marshall: Exactly.

Levi: And not ceding to the courts. It took more than 100 years, really, to instantiate this.

Marshall: Absolutely.

Levi: It’s really very important. Well, probably you took some criticism.

Marshall: Oh, I took massive criticism.

Levi: I read the opinion recently, and one thing, it was 4-3.

Marshall: Yes.

Levi: And so you had some dissents. But all the opinions are written very respectfully, and in quite a calm tone. I noticed that. And I imagine that that helped somewhat in the public discussion that followed, that it would at least be respectful.

Marshall: One of my responsibilities, I felt, as chief justice, was to make sure that there were no ad hominem attacks among the judges on each other. I never tried to persuade somebody, except in conference and by legal argument, to join the majority. If the justice felt that she or he was in dissent, that was fine. But my intention, not entirely accomplished in Goodridge, was that the justices in support of the majority opinion would all write together. The justices writing in dissent would all write together. So that the litigants, the bar, the public, could understand a ruling, without having to get mired in details.

The lead dissent was written by Justice Martha Sosman. She tragically died young, of breast cancer. She and I worked really hard to strip our opinions of accusations that we were homophobic or religious or whatever it was, but also to strip out of our opinions the wonderful dances that justices can get into about rules of interpretation or which standard of review should apply, all kinds of legal issues  in which the public are really not interested. We have an educated bar, and lawyers would understand what we are talking about. Both her opinion and my opinion were drafted so that people could understand how we arrived at our respective positions: why did she have that point of view, and why did I have a different point of view? There were additional dissents and a concurrence, but that was fine, I mean, the tone of all of the opinions was fine throughout.

Levi: Yeah. So, you had many other opinions. The role of a court like that in a state like Massachusetts, there are going to be an enormous number of common law cases and statutory cases. Are there others that perhaps didn’t gain maybe the same degree of national and international attention that stand out to you, or that you’re particularly proud of that you wrote the opinion?

Marshall: When you have a court as old as Massachusetts (and you see this in the United States jurisprudence as well), two recent developments are reflected in our jurisprudence. One is technology. Now, technology has an impact in all kinds of ways. In the “old days”, for example, in an employment case, if the employee had a desk and a locked drawer in the desk, generally speaking, courts ruled that an employer could not look at files in the locked drawer, the files that the employee had kept in his locked or her locked drawer in the office. Technology suggests those decisions are now out the window. The court has to wrestle with issues like:  can an employer read an employee’s electronic documents. Or can an employer, for example, put a GPS on your car to see what time you arrive and what time you leave or where you go after work? The answer may seem obvious, but it is not so obvious.

Technology also has also had an impact on the area of health, and particularly fertility. We had a series of cases that involved frozen sperm or frozen embryos. I can give you one example. A happily married couple have some fertility challenges. The husband’s sperm are frozen by a fertility clinic. The only interest of the fertility clinic was, can we destroy these sperm after a certain number of years? The couple later divorce, the husband moves to California, the woman does not remarry. As she approaches age 40 and 41 she would like to have another child. She goes to the fertility clinic and says, “I would like to have the sperm of my former husband.” Well, you can see the ramifications.

Levi: Yeah. It raises some issues.

Marshall: It raises some issues.

Levi: Yes.

Marshall: Or, another one, again involving a heterosexual married couple. They’re going to have a child. The child is being delivered by a surrogate woman. Everybody’s onboard. The couple came into the court to say, “Could you order the hospital to list the wife (not the surrogate) as the ‘mother’?” Why did the married couple want that? For all kinds reasons. If the child was born with a major defect, who was going to become the decision maker? From the hospital’s point of view, the “mother” is the woman who’s delivering the baby. Very interesting. When do you say this woman is the “mother” and when say that the other woman is the “mother”, and for what purposes? You may be the delivery nurse. The Court was presented with many questions like that.

I would say that privacy-related questions are also emerging in a new way. What happens when an irate police officer pulls somebody over and starts screaming at the passenger for, I don’t know, driving too fast or whatever it was, and the passenger surreptitiously turns on his iPhone and starts to record? Massachusetts has a statute that you cannot record another person without their permission. Passenger goes to the police station to say, “Do you see how your police are treating citizens?” The next thing he knows, he’s getting indicted for violating that statute.

Levi: Yeah. Interesting.

Marshall: Didn’t exactly turn out …

Levi: Yeah. Not exactly what they were expecting.

Marshall: So, all of these are examples of what I would generally call changing technology.

Levi: So, let’s stay with that theme. So the changing technology is, comes into the courtroom in cases. But putting on your other hat as the chief, the technology, the advances in technology, offer some avenue for providing better access to justice, which is one of the really big challenges that the state courts face.

Marshall: Correct.

Levi: There are just so many people who, either because they can’t afford it or because they don’t want it, appear in court without a lawyer and need a lot of help. And I’m wondering what your thoughts are on what we call the justice gap in this country.

Marshall: Certainly, technology helps. But there’s an upside and a downside. It helps because one can have standard forms for litigants that are available online. You can have lawyers giving advice remotely. On the other hand, the Court had to promulgate a new court rule of “limited representation”, that is if a lawyer advises a litigant for one part of a case, the lawyer didn’t necessarily have to take on every other legal issue that arose in that case. That was the old rule: if you’re the lawyer, you’re the lawyer, and you couldn’t get out of the case without a judicial order.

Technology is very helpful with translations, for example. As you can imagine, the delays when you try to find the one person who’s going to provide the translations for some language, which is not widely spoken in the United States.

Levi: Right.

Marshall: But it became complicated. And so that fell by the wayside.

During my tenure, we opened up and we put on the web proceedings before the Supreme Judicial Court. I feel very strongly, very strongly indeed, that there should be cameras in the courtroom. There are opposing view, especially, if for a jury trial or something like that. Think of the OJ Simpson case. But I do disagree with the United States Supreme Court that does not have cameras in its courtroom. I know that there are issues of security for the Justices. I really do. And I don’t minimize those. On the other hand, our Justices are now out on the road, speaking publicly. Their speeches, and visual recordings of the Justices as they deliver those speeches or interviews at law schools, for example, are on the internet. It’s very hard to draw that distinction any longer.

Levi: This is part of civic education, perhaps, too, which is something that judges are very concerned about.

Marshall: Oh, absolutely.

Levi: Is that the people really don’t understand our system of government any longer.

Marshall:  Justice Sandra Day O’Connor, after she retired from the bench in particular, was actively involved in that. She supported using a lot of technology to help people understand how the three branches worked, how they interacted. There’s really wonderful work going on in that area. And technology has made a big difference. This conversation that you and I are having, I don’t know how many people will listen to it. But hopefully …

Levi: A few.

Marshall: A few. And I hope they will learn something about what goes into a decision, what does a Chief Justice do? What are some of the issues? I should say that the Chief Justices of the 50 states and the territories, that’s the Virgin Islands, Guam, the Mariana Islands, Puerto Rico, we get together twice a year. And we become chief justices in very different ways. But we all face the same challenges of running court systems, big challenges. After 9/11 there was a series of challenges.. I so admire the National Center for State Courts that brings all of those Chief Justices together and has them share their expertise so all are not reinventing the wheel all of the time.

Levi: There are just so many issues. The regulation of the bar, which the state Supreme Courts are very involved in. It touches on what you just mentioned, the health of the bar. And we have these fees and fines issue.

Marshall: Absolutely.

Levi: So many of these state courts have to fund themselves, and they do this through fees and fines, which are crippling for many Americans. And it’s not the right way to fund an entity. And then we’ve talked about the access to justice, and then you’ve got all these security issues. And it’s very complex.

Marshall: It’s very complex. And when you talk about states regulating the bar, which we do, and we guard it jealously, the bar is now global. So, for example, when Australia wanted to negotiate the right of lawyers trained and admitted in Australia to appear and to practice law in certain states of the United States, they weren’t thinking so much about being trial lawyers or in trial. They were thinking about being corporate lawyers, doing deals. Who’s advising whom on what issue where? Well, Australia went to negotiate with the State Department. Of course, they don’t think they have to negotiate with 56 different chief justices. It became quite a tousle. Will Massachusetts allow Australian lawyers to do deals in Massachusetts, physically located in Massachusetts? In other words, practicing law in Massachusetts. I don’t know how that’s been resolved, but it was an ongoing issue when I was the chief.

Levi: So I like to end these podcasts by asking the judge if they have a judicial hero or a role model that meant a great deal to them. And that maybe influenced you as you did your work.

Marshall: It’s a very difficult question because in some respects, I came as such an outsider that I didn’t grow up knowing about the heroes. I think, I have two. In part because of the role that they played that made such a difference to me. The one may seem obvious, and I’ll explain why it isn’t. The first is John Marshall. He established the ground rules for a brand-new system of government. Before 1787 there had never been a constitutional democracy in any nation. The second is a person whom I did know, Arthur Chaskalson, who was the first Chief Justice of the new democratic constitutional system in South Africa, established in the 1990s. Both men had to lay the groundwork for what they hoped would be an institution that would survive for hundreds of years. When I became Chief Justice, I tried to make sure that the judicial branch in Massachusetts was as least as good as when I inherited it. Maybe make it a little better, but not set it back even for 10 or 15 or 20 years. I will add that in my chambers, I had portraits of the two Marshalls. John Marshall and Thurgood Marshall. I found them both inspirational.

Levi: And you’re a Marshall, too. We might point out.

Marshall: And I used to say, “These are my ancestors.” Which they were in some respects.

Levi: Well, that’s really a marvelous answer. It’s been such a pleasure to talk with you. It’s always fun. It’s always interesting. I can’t help but reflect that, how lucky we are as a country that you were, you came here. Although the reasons were not hopeful at the time, the outcome, I think for us, has been just stupendous. So, thank you for your service to our courts, to our country, to the people of Massachusetts. And thank you for joining me today on Judgment Calls.

Marshall: Thank you, David. The United States is a great country. I would never think of living anywhere else. I love this country, and it has given me so much, I don’t think I can ever repay it. So, thank you.

Levi: Well, you’re well on your way to repaying it, and that’s a wonderful statement. I’m David Levi, thanks for listening.

Voice: Judgment calls is produced by the Bolch Judicial Institute at Duke University. Find us online at judicialstudies.duke.edu.