Early Days of Apartheid Shaped Belief System for Chief Justice

By IAN FEIN

She first came to the United States as a high school exchange student from apartheid-era South Africa in 1962, near the height of the civil rights movement.

At a young age, Margaret H. Marshall, who is today the chief justice of the Massachusetts Supreme Judicial Court, witnessed marches in the street, listened to debates in Congress, and - in her words – saw democracy working before her eyes.

"I tasted freedom. There is no other way for me to describe it," said Chief Justice Marshall, now 62, who led a student movement against apartheid when she returned to her home country later that year.

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"Once your eyes are opened, your eyes are open," she said, her South African accent still easily recognizable. "You can no longer simply ignore injustice."

The first woman to head the judiciary branch of the commonwealth, Chief Justice Marshall takes deep pride in upholding the Massachusetts state constitution, a political document that laid the cornerstones of modern democracy.

In a conversation at her home in West Tisbury last weekend, she reflected on the American democratic system, and her judicial career, only a few days after the Fourth of July. Along with her husband, former New York Times columnist Anthony Lewis, Chief Justice Marshall is a longtime seasonal resident of the Vineyard.

"I went to law school not to be a lawyer, but to learn about this country and how its democracy works," she said, sitting on her screened-in porch, a glimpse of Tisbury Great Pond barely visible through the trees. "The United States has a very thrilling, vibrant government. It's fascinating, absolutely fascinating."

As framed by John Adams, the Massachusetts constitution was innovative in its approach to democracy. It is the first founding document that began with a written charter of inalienable rights, and is also the first to create an independent judiciary to protect those liberties. A well-read political theorist, Mr. Adams envisioned three coequal branches of government, in contrast with earlier systems where judges depended on a king for their salaries and tenure, and were required to uphold any laws passed by parliament, no matter how draconian.

"John Adams wanted to make judges, in his words, ‘as free, impartial and independent as the lot of humanity will admit,' " she said. "This was truly revolutionary because at that time the British parliamentary system was supreme."

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Ratified in 1780, the Massachusetts state constitution predated the federal constitution by almost a decade, and its structure has since been embraced across the globe.

"What the United States was doing as a government was unusual and unique, and wasn't followed anywhere until after the Second World War," the chief justice said. "But by the end of the 20th century, virtually every new democracy adopted the Adams model with a written bill of rights, which can be enforced by independent judges," she continued.

"After 227 years, it remains the longest-lived constitution in force in the longest living democracy."

Ms. Marshall returned to the United States after college to pursue a master's degree in education and then a law degree from Yale University. She specialized in her years of private practice on intellectual property rights, and served as president of the Boston Bar Association before she was appointed general counsel for Harvard University in 1992. She said she never intended to be a judge, but could not turn down the opportunity when Gov. William Weld nominated her to the Supreme Judicial Court in 1996. Three years later, Gov. Paul Cellucci nominated her as chief justice.

"I now have the distinct honor of serving on a court that I long revered," she said, "and which played such an important role in the history of civil liberties."

Ms. Marshall said she learned about the Massachusetts court and constitution from her readings in South Africa. The very first legal case concerning the new constitution was brought by a slave, Quock Walker, who was seeking his freedom.

"Mr. Walker came to the court and said, ‘Look at this, your constitution says that all men are created equal,'" she said. "The Supreme Judicial Court in 1783 agreed with Mr. Walker, and said slavery was inconsistent with the constitution. It was the first judicial decision in the world that enforced a bill of rights and put an end to slavery, all with the stroke of a pen."

Two hundred and twenty years later, Chief Justice Marshall leaned on that same principle of equality in her own historic decision, when she authored a 4-3 majority opinion that declared a ban on same-sex marriage violated the state constitution.

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Released in November 2003, it remains the first and only such judicial decision in the United States.

"Without the right to marry - or more properly, the right to choose to marry - one is excluded from the full range of human experience and denied full protection of the laws," she wrote in Goodridge vs. Department of Public Health. "The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason."

Unsurprisingly, the decision proved incredibly polarizing. Ms. Marshall is hailed in some circles as a hero of civil liberties, while she is criticized by many conservatives as an activist judge, and even by some members of the gay and lesbian community, who saw the decision as setting back their larger cause. Conservative outrage over the decision helped spark a series of constitutional bans on gay marriage in states across the country, and Ms. Marshall soon found herself at war with Massachusetts lawmakers, who cut funds for the state court budget.

But she appears to have taken these reactions in stride. Though she would not comment on the Goodridge case specifically, she said she always approaches each case on its legal principle, without considering political or social implications.

"It's not that I don't watch or read the news. But it really has no impact," she said. "As a judge, you cannot decide cases that way. You look at the facts, you hear the arguments, you examine the precedence, and you make the best decision you can. And then you move on to the next case."

Massachusetts remains the only state in the country where gay and lesbian couples can legally marry. However, Chief Justice Marshall in her decision compared the issue to past bans on interracial marriage, and noted that it took almost 20 years after the California Supreme Court ruled on that topic before the nation's highest court followed suit.

Judges must decide each case to the best of their ability, she said, and then let history determine which were the most significant.

She recalled the famous Cape Town speech of the late Sen. Robert F. Kennedy, with whom she traveled in South Africa during the 1960s, and paraphrased from his remarks.

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"Each tiny act of courage is like a little pebble dropped into a pond, which forms a ripple of hope. And you never know which ripple may join with others to form a wave that can then break down the greatest fortresses of oppression," she said. "That is a very powerful message for the many young people today who might look at the war or environmental pollution and think, ‘What difference does it make?' "

Only months after Ms. Marshall returned to the United States for graduate school, assassins killed Senator Kennedy and Martin Luther King Jr., whose writings and audio recordings she had smuggled into South Africa. She said the two killings shattered her, but did not disrupt her faith in the country and its democratic system, which ultimately persevered.

"Like anything, you pick yourself up and dust yourself off," she said. "I really came to understand and love this country, and the way Americans wrestle with their deep moral and ethical conflicts. This is not a take-it-for-granted society."

In recent months, the U.S. Supreme Court has shifted demonstrably to the right, with a series of 5-4 decisions upending years of precedence, much of it eroding civil liberties.

But Ms. Marshall said she is not as concerned about the national judicial system as she is about the many state courts where judges are subject to reelection or reappointment, and lack the independence envisioned by John Adams as necessary for a properly functioning democracy.

"These judges who are up for reelection or reappointment, they are taking away some of the building blocks," she said. "My greatest concern is what is happening in these state courts, where 90 per cent of all judicial matters are resolved." She concluded:

"But in Massachusetts and the federal courts, I have the utmost confidence in the mechanisms that were put in place in our constitutional system. You may disagree with a certain type of judge, or a particular decision. But that is our system. And it has worked very well over a very long period of time."