Saturday, December 17, 2005

Margaret's Choice-A Fantasy

Margaret H. Marshall always had mixed feelings about being a judge. She loved the law, the dense interplay of statutes, precedent and values tightly argued. She could pick up each thread and follow each detail of any brief. She could usually have done a better job, so she would fill in the blanks of the lesser skilled advocates, when they were arguing a position she supported, that is.

She had made it to the top of the heap in Massachusetts, from Harvard General Counsel, to associate and now as Chief Justice of the Supreme Judicial Court of the state. There was a downside to her position, that she could take no active part in politics. Margaret Marshall, not being active in politics, who would have believed it.

Her earliest memories from her native land where of politics; hard fought, life changing, revolutionary politics. All through school and then as president of the National Union of South African Students, she led anti-apartheid activities and protests amid threatening government opposition. It defined who she was and was to be.

In spite of variations among individuals, it usually turned out that the Right were the ones with the billy clubs who wanted to keep what they had, and the Left was trying to give the blacks, or the workers, or women an even break. She felt no guilt about being called a Liberal.

She loved her adopted country, and her great life. Married to Anthony Lewis, an older retired columnist of the New York Times and surrounded by the elite of Harvard, she was both challenged and revered. Having no children of her own, her concern for the oppressed seemed especially intense, as if infused with a maternal desire to take care of them.

Her reverence for the American legal system, as close as she came to a religious belief was shattered after the election of 2000. She watched the Republican goons close down the ballot counting in West Palm beach. She watched as each spokesman recited their talking points, repeating nonsense so often it drowned out real discussion. She carefully studied the legal arguments in each stage of litigation, up to the Florida Supreme Court, praying that justice would prevail over demagoguery.

This was why she entered law. It was politics of the mind. No violence, no pickets, no strikes; just the brightest people using the weapons of precedent, statutes and logic. She noted the words of the Florida constitution, “Notwithstanding any law or regulation, the manifest will of the voters will be the ultimate outcome to be achieved” There it was in the foundational charter of the state. All of the stupid errors because of defective equipment and botched butterfly ballots will be overruled, and the Democratic majority will prevail”

When the Bush people requested an emergency injunction from the Federal Supreme Court, none of the commentators took it seriously. How could they, this was a state issue. And if there were to be a contested slate, if the state courts and the Governor sent different electoral slates to the House of Representatives, the Constitution, which is almost always vague, gives specific rules for deciding which to accept.

And then that Friday, out of the blue, the word came down, The Supreme Court had enjoined the state of Florida from continuing counting the ballots. It was over. They scheduled hearings for Monday, but it would be too late. It had taken a massive effort to mobilize this recount project, and once dismantled it could not be restored in time. This was not a delay, it was a death knell.

She didn't know whether to laugh or to cry when she read the final decision. Scalia could make shit look like Foie Gras, but he couldn't get rid of the smell. She read Justice Stevens' summation, “We may never know who won this election but we know who lost, every judge in every courtroom in every state where justice is pursued.”

And then came 9-11. A few weeks afterward the New York Times editorialized that President Bush has achieved a new gravitas. Not to Margaret. She recognized the same arrogance of power, the same mixture of false patriotism mixed with religious fervor, the same threat against dissent that she had seen in South Africa as a child. But now she could do something about it. She could command a majority of her court that would send a message to the Republicans that they could not ignore.

Prohibition of Gay Marriage was the final stand of bigotry in America, and she had the ability abolish it in her state.. While others would have avoided this issue, she welcomed it. When it landed in her court in March, she took the lead in lining up support. The final decision had been written and she had the draft on her desk. Her husband, the Harvard crowd, all her friends would be proud.

She didn't care a bit about the anger from the right wing bigots who would attack her. But Martha's reaction still got to her. Martha Sosman had been her buddy from even before she got on the court. There was a bond, almost like high school best friends that belied their different backgrounds. There were a few cases where they were on opposite sides, but no biggies, just a jurisdictional dispute and a case of paternal rights. They actually gained more mutual respect for each other from them.

Martha had written her dissent on the Gay Marriage case with two justices concurring, but Margaret had her majority of four. They were solidly behind her decision and it would become law. And to underline her determination, the order for compliance would not be like Earl Warren's desegregation decision with compliance ordered, “In all deliberate speed.” but to be implemented in six months. The sound of her gavel was to be heard throughout the state and echo across the country. The legislators, the religious nuts, and the people in the state just better get used to it.

Now, the Martha that stood before her in her office was not the woman she knew. With a cold intensity she spoke, “Margaret, you are about to make a mistake, that you just may regret for the rest of your life.” “Now come on,” Margaret laughed, “What could happen, I'm going to get impeached.” “No, not a thing will happen to you, you will be the hero of Harvard Square, you will be written up in Harpers, and Spielberg may even make a movie of your life. You will be just fine, it's the country that will suffer.”

Margaret wasn't used to this. She was prepared for anger from the rabble, from the right wing media, but not for this. She was stunned as Martha, with a fire she had never seen, went on, “Your friends may all think you're a hero, but they don't make a majority, they don't elect congress, or presidents. Your friends are already hated by the people out there, and you are going to make them despised. Your husband, Anthony gets the same one vote with his Pulitzer prize as some poor slob with an eighth grade education.

They don't have much, those people who hate their jobs and struggle to get by. But they have a dream, from when they are little kids. They can have this identity, an identity as a husband, as a wife, something that transforms raw sex into something holy. It's all in that marriage ceremony. They are now Husband and Wife, all they have to do is say some wows and they belong. It's all pretty fragile with them, and you are going to break it right over their heads.

Martha stopped. She realized she had gone too far. Margaret composed herself and said, “But all that you say, all the good, all the comfort from being married, why can't everyone have it. Thats all I'm doing, giving this good thing to everybody.”

“It's just not going to work,” Martha responded. “Marriage is this magic device that turns passion into love, but it also does something else, it restricts and channels this passion. You can't touch Mommy in certain places, same with little sister, and something else that you learn, the rules for those like you, with the same genitals is different than the rules for the other sex. Forget the crap that the bible says sodomy is a sin. It's a sin because it breaks the rules. Not your rules, not my rules, but the rules of most of the poor souls out there. They have followed them, whether they like it or not. You will show them that they are all narrow minded bigots. They can't provide a steady living for their family,and if their kids get sick they may not even be able to take care of them. And you are destroying what little they have.”

Martha was exhausted, so now calmly she continued, “And they will show their appreciation. Those Right wing bastards will pounce on this and never let up, they will have permanent residence in the White House. They can take away their health care, make sure the rich get richer and the poor better damn well have their kids, whether they like it or not. You just don't know what you are doing. You just don't know...” With that, she turned and walked out the door.

Margaret tried to continue her work, but it was impossible. She was flushed, shaken. She told her secretary she had a headache and went home. She tried to talk to her husband about the conversation, but she couldn't. This was her best friend challenging her most basic beliefs. There was no one to talk to.

That night sleep would not come. Martha's words kept running through her head. Her answers to her, her logic, her well honed jurisprudence seemed hollow, like she was missing something. When revelry finally melted into dreams, there was no peace. She saw the crowds, shouting in unison, the signs, “Down with activist judges.” She saw the news bulletin on Fox News, the announcer with barely controlled glee saying, “The votes for those who came out to support the anti-Gay marriage amendments made the difference. George W. Bush has been re-elected President.”

Then there was this wood paneled room, Anton Scalia, no longer only with two buddies, now there were five, all in their robes with the confidence of absolute power. They had won the ultimate prize. The highest court of the land will be theirs for decades. It will be their God who will now be the final authority. Lives of the unborn, unwanted by parents, will be under His protection, as will the the aged who dearly want to be rid of their mortal coil. Tie their hands and let them await God's will, shall be the law of the land. The malformed, unloved and unwanted will be under Gods protection, right up to the time of birth, when neither God nor state will be any longer interested.

As Margaret watched, trapped in a dream more real than any reality, she heard a scream from somewhere, a terrible swelling moaning cry that finally broke through. Anthony had been shaking her for what seemed like minutes. Her heart pounding, she opened her eyes. It had all been a dream, but it seemed so real. She was a different person than the one who went to sleep only hours before.

The next day she called a conference of the court and said she had reconsidered her position on the case before them and required a postponement. In the next few weeks, she explained to each of the justices, with thoughtfulness and tact, that although she felt gay marriage is something to be desired, it should not be a decision of the judiciary, but rather of the elected representatives of the people.

Martha was the last person she spoke to. They tried to be professional, but couldn't. The tension was resolved in tears, followed by shared laughter, a release neither of them had known for many decades. The final opinion, written by the two of them, and unanimously endorsed by the court,was something new in the annals of law. The ideal of expansion of the right to marriage to all was endorsed, but so was the appreciation of what this would mean. The value, the vital function, of tradition was articulated outside of the idiom of religious absolutism. There was an affirmation of the proper role of the court, and what should be left for other branches of government, and other less definable processes of societal change.

Although scholarly and tightly written, the decision was widely and extensively quoted in the press. The reasoning made intuitive sense, and for once the people of the country felt connected to those who made their laws. Shortly afterwards, and little noticed, a web site was shut down. had simply stopped getting hits.

There were no referendums on Gay Marriage in November of 2004, so the turnout in key states was rather low. Perhaps that is why President Bush lost by 37 electoral votes.

Bio of Marshall

Actual Decision


Blogger Al Rodbell said...

This is a copy of private corespondence

Dear Al,

I read your make -believe opinion and scenario with total fascination and, as you anticipated, with complete disagreement. The same arguments that you make could have been used to support the separate but equal doctrine, laws against miscegenation, sodomy , birth control and abortion and many other issues where the popular will supported discrimination against a minority.

One of the major purposes of a constitution is to protect the interests of minorities, particularly unpopular minorities, against the popular will and I think it is the proper function and indeed duty of the judiciary to apply constitutional principles to such situations even where legislatures, which are more subject to the popular will, refuse to act or disagree.

As it turns out, same sex marriage or civil unions are no big deal in other countries - Canada, Britain, a number of European countries, etc. and I am sure the people of the United States will get used to the idea that gays should have the same rights as straight people just as they have gotten used to the idea (more or less) that enforced racial segregation is unlawful.

As the federal judge in the Dover intelligent design case wrote a couple of days ago in declaring that intelligent design could not be taught in a science class, "if this makes me a judicial activist, so be it" or words to that effect.

Would that we had more "judicial activists" who are willing to uphold due process and equal protection of the laws even in the face of hostile majorities. Anyway, I did enjoy your essay and look forward to many more to come.


Bill S.


I'm glad you enjoyed my essay. I have thought about your response before you sent it, since this is ground already covered, even anticipating some of the your examples.

With all due respect, and I do not use this phrase lightly, we all are biased by our professional discipline. It is inevitable, even for someone with your breath of experience and natural intellectual curiosity. You and Margaret Marshall, both growing up in different cultures, and attaining the highest mastery of your adopted nations legal principles, probably have much in common.

I believe fine distinctions are required that go beyond jurisprudence, to consideration of the consequences of decisions. (Don't quote me if I ever face confirmation for Chief Justice) In the Massachusetts case, which I did provide the link for, there was a legal rationale articulated by the minority. There is always an alternate theory for every Supreme Court Decision. This is exactly why I rue the coming direction of the new Roberts court.

I read a large part of the Dover Intelligent Design decision yesterday. How can I endorse that decision while I would hope that the Supreme Court overrules the 9th court of appeals in the "under God" case. The facts and precedent dictate that Newdow should prevail, and the words disallowed in schools. But that would be myopic of the Liberal justices and against advancement of their values. You know the quotation in a decision made when the court allowed a questionable intrusion of civil liberties for national defense, "the Constitution is not a suicide pact."

The Massachusetts Constitution should never have been a suicide pact for the Progressive Movement. I do believe that the cost of Margaret Marshall's decision was too great. Analysis of the 2004 election would lend support to my contention that this issue made the difference in key states that decided the election. Was it worth it?

In my scenario the movement towards acceptance of Gays would not have been reversed, it would have been slowed down. Civil Unions is not exactly banishment. If you have the time, I recommend a book , "Simple Justice" that describes the fifty year battle to end segregation in America. It is a comprehensive book that , while covering the court battles in detail, looks at all of the changes in society during that time.

The Supreme Court both drives social change and is a reflection of this social change, which is a product of many forces. The interplay is subtle and fascinating. You write, "The same arguments that you make could have been used to support the separate but equal doctrine, laws against miscegenation, sodomy , birth control and abortion and many other issues where the popular will supported discrimination against a minority."

In each of the five examples you give, a good portion of the states had already adopted the policy that the Supreme Court mandated. And I believe in most of the states it was their legislatures rather than their courts that drove the policy that the Supreme Court extended to the entire country.

A United States Supreme Court with Roberts and Alito; or one with Cuomo and perhaps a retired international lawyer with the initials of W.S. In spite of Roberts nonsense that he will only be a simple umpire calling balls and strikes, he will be defining which prism will be used to see these calls. The difference is profound. And we are stuck with what we have, for a long long time.

Thanks so much for your comments.



12:46 PM  
Blogger Howard Brown said...

Dear Al,

I suspect the working poor are more concerned about their own economic security than the sanctity of the (heterosexual) marriage vows. As a stand-up comic recently put it, "Let them marry. Why shouldn't they be as miserable as the rest of us."

The national divorce rate is high enough to suggest that only Catholic priests and bishops place unwavering value on marriage, they who cannot marry.

I suspect the real objection comes from those who stand to suffer an economic hit from gay marriage, since gay couples would enjoy all the advantages of straight couples in matters of health care, insurance, inheritance and property rights.

Of course there would be rabble-rousing over the issue, but the rousing strings would be pulled by those with an economic stake in the status quo.

Howard Brown

9:15 AM  
Blogger Al Rodbell said...

This is a copy of private correspondence:

Bill S. wrote on Dec28

Thanks for your as always thoughtful response. I understand your argument but I am troubled by the notion that a judge should allow his legal conscience to be guided by the election returns and have to worry each time he takes a stand for principle: will this alienate a lot of voters and thus result in an even worse legislature ?

Judging is hard enough without having to go through that kind of a mental exercise each time. On balance, I think it is better for judges to call them as they see them and let the chips fall where they may. (I have just turned into Mr. Arbuthnot - the New York Times' famous cliche expert - do you remember him ?)

Anyway, its fun sharing thoughts with you and all the best to you and Sheila for the coming year.

Bill S.

To Bill,
from Al

I don't know how much time you have for reading, and whether you prefer to use it to get away from your legal endeavors, but I think you would enjoy the book I had previously mentioned. , Simple Justice : The History of Brown v. Board of Education and Black America's Struggle for Equality (Vintage) -- by Richard Kluger
The research is extensive, yet it reads like the novels that the author also writes.

The book described the conflict of Felix Frankfurter over the integration decision. Frankfurter was a the ultimate liberal, founding member of the ACLU, a New Deal official with great hatred of racism. Yet he also revered our constitutional system which he interpreted as requiring judicial restraint. What I remember from the book is his strong feeling that when a Supreme Court Judge really has a sense of satisfaction about a decision that he has just made, it is an indication he has overstepped his charge, and gone beyond the bounds of his judicial mandate. This was Frankfurter espousing the Justice Roberts, balls and strikes metaphor. Whether the foregoing supports the majority or the dissent in the Mass. decision is an open question.

I will just leave a few open threads on our conversation, with the understanding that your pro-bono work just may do some actual good in the world, and rightly should take precedence over this "deep" socio/politico/legal" discussion.

First I came across an article by Chief Justice Margaret Marshall's husband, Anthony Lewis on a Supreme Court decision that could have been cited as a precedent for her decision. The problem is it was the South African Supreme court, a country with a very different history, and societal DNA.

And finally, I will reference the Op Ed in Sunday's N.Y. Times by that highly respected social critic, the writer of Seinfeld, Larry David , on why he will not see the hit movie about gay cowboys. In this humorous article, if you look hard enough, you will see just why perfectly decent people are not ready to call gay unions, marriage.

(anyone who wants links to these articles, contact me at

11:06 AM  

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