Margaret Marshall ushers me down a series of hallways, turning on lights as she goes. It’s nearly 5 p.m. on the 10th anniversary of her appointment as chief justice of the Massachusetts Supreme Judicial Court, and Marshall wants to show me the consultation room where she and her six colleagues deliberate. It’s a large wood-paneled room with a fireplace on one wall and a long table down the middle, the same table that Marshall’s predecessor, Oliver Wendell Holmes, used for such meetings 100 years ago. Papers are arranged in seven neat piles for the next day’s monthly gathering of the justices. Marshall sits at the head of the table and the other six justices, arranged by seniority, sit along the sides. Like a mother hen, Marshall recites the name of each justice and where they sit until she comes to the court’s newest addition, Justice Ralph Gants. She calls him “the baby judge.”
Traditions are carefully observed when the justices meet, Marshall says. No food, drinks, or aides are allowed in the room. Justices address each other using their titles; first names are forbidden. The justices also dress appropriately. Marshall recalls telling one newcomer to the bench to put on a coat and tie after he came to the meeting dressed casually. As Marshall tells these anecdotes of court life, her pride in the court and its history is evident.
But the job of chief justice is more than writing judicial opinions on some of the most important issues facing the state. She also oversees the entire Trial Court, and she is worried that budget cuts here in Massachusetts and across the country are plunging state court systems into crisis. In a speech to the New York City Bar Association in November, Marshall said state courts handle 97 percent of all litigation in the United States yet are at “the tipping point of dysfunction.” She says many state courts are forced to offer “turnstile justice” in the face of shrinking resources and rising case loads, although she tells me that’s not happening yet in Massachusetts.
As we sit down to chat in the sitting room outside her office, Marshall, whose opinions and speeches are clearly and beautifully written, confesses she has a tendency to meander during interviews. She offers to condense answers by email if her answers go on too long during our interview. I didn’t take her up on the offer, but I did discard chunks of the interview and rearranged the order of some questions to make it flow more smoothly. What follows is an edited transcript of our conversation. You can also listen to three audio excerpts, listed immediately below.
Among other things, I asked Justice Marshall:
What would happen if more large cuts were made to the court budget?
Does the Legislature treat the courts as a state agency rather than as a coequal branch of government?
Should the courts receive a dedicated revenue stream?
Commonwealth: One of your chief concerns is that state court systems don’t have a seat at the table when budget cuts are being made, that lawmakers treat the courts like just another state agency instead of a coequal branch of government. Is that intentional?
Marshall: I don’t think that they intend to treat us like another state agency, but the point I try to make as frequently and as loudly as I can is that we’re not a public policy option. I do not want to close day care centers. I do not want to find that people with substance abuse problems cannot get access to treatment programs. That is part of the safety net that we would hope to provide to all citizens. But those are choices that the Legislature has to make. Whether to keep the judicial branch functioning is not a choice; it’s a constitutional mandate. The Massachusetts Constitution is the oldest written constitution in the world still being enforced. In that constitution, it calls for an impartial interpretation of the laws and administration of justice. I cannot say to the people of Pittsfield, “Sorry, we’re not going to have a courthouse out there, you’re going to have to travel to Boston.”
CW: Traveling from Pittsfield to Boston is an extreme example, but Massachusetts has more than 100 courthouses. Couldn’t some of them be consolidated?
marshall: One could collapse certain courthouses, although one of the strengths of the Commonwealth’s delivery of justice is that you don’t have to own a car. Are there ways that we might have to streamline? Yes. But it’s not easy and I would think we’d want to do that as a last resort.
cw: Your budget has already dropped by $50 million this year. If state revenues continue to slump and more budget cuts are needed, what will happen to the state court system?
marshall: It will not be possible to deliver justice in the way that the constitution requires with those kinds of cuts. Chief Justice for Administration and Management Robert Mulligan and I have spent all of the last year trying to eliminate from the judicial budget all pieces that are not core functions of the judiciary. For example, alternative dispute resolution is one of the most successful ways to resolve disputes, especially civil disputes, in a way that is the least costly and with the greatest satisfaction for litigants. But we eliminated all of our alternative dispute resolution programs. I didn’t like doing that. I don’t think it’s a good policy to do that. But it is, from my point of view, a public policy choice. We eliminated almost all guardians ad litem, who play a crucial function, especially with children and the elderly, in terms of making sure that someone is in there representing their views. We’ve cut back on court stenographers and are using recording devices. Chief Justice Mulligan has many of our court buildings in leased facilities. He has renegotiated almost all of those leases. We have tried everywhere that we possibly can to cut back. We’re already down close to 600 people since July 2008. That’s a large number of people who have left. There has not been one person hired in the Trial Court Department since October 1, 2008 — in fact, March 2008, because we saw the signs coming.
cw: Other state court systems are shutting down one day a month. Will that happen in Massachusetts, too?
marshall: I hope not. I think there’s a recognition by the governor and the Legislature that that would be a devastating blow to the judicial branch. I don’t know of any occasion in the history of the Commonwealth where that has happened, and we’ve been through some tough times before. …For me, because I grew up in a country [South Africa] that had no system of justice, I am passionate about having a justice system that works.
cw: Do you think the court system should receive a dedicated revenue stream, much like the MBTA does?
marshall: What you’re really looking for is stability. There are, in fact, a lot of discussions about whether there should be a minimum percentage of a state budget that should be allocated to the judicial branch without a debate over it. It sounds good on paper. But this is my view: The Legislature is charged with the business of raising taxes and appropriating money. I enjoy my discussions with the Legislature, helping them to understand what I need to deliver justice. Of course I would feel more comfortable if there was some formula that said if you have umpety-ump number of cases in the system, we will ensure that you have a minimum amount of money and then we can talk about add-ons. But I don’t think that’s how it really works in a democratic process.
cw: What do you want then?
marshall: I have asked for full transferability of all funds within the judicial budget in any given year. That does not mean that I’m asking for a blank check. What it means is, I go to the Legislature and say, “I have this number of judges, etc. I would like you to appropriate adequate funds. But if there is a crisis of some kind, I would like to be able to move funds around. When I come to you next year, I’m going to have to explain why I moved funds around.” That’s the kind of independence that I think would be most helpful. If I were an elected representative, I think I would want to know how money allocated to the judicial branch is being spent — for example in connection with my courthouse. I have made transparency and accountability hallmarks of my administration as chief justice in part because when I first became the chief justice, a regular complaint I heard from legislators — and I considered them legitimate complaints — is “we can never get a straight answer.” For example, does the Boston Municipal Court have too many employees and the Springfield District Court too few? My answer was always, “I don’t know.” That was my answer in 2001 and 2002. I can now answer that question. I have moved from management by anecdote to management by data.
cw: How did you move to management by data?
marshall: I became the chief justice in 1999, and we hit our first serious downturn just a couple of years later. It was apparent to me quite quickly that during my tenure as the chief justice, which goes until I reach age 70, I would probably face a number of economic downturns. None has been as serious as the one that we are presently in, but it was clear to me that this was a recycling occurrence. Part of what I tried to do is to make sure that when I faced the next economic downturn, I had in place the data and the mechanisms to deal with it most effectively. That is one of the reasons why I, with the justices, invited this independent group of business experts [the Court Management Advisory Board] to come in and say how we can deliver [justice] in a more efficient way. I saw that we’d have fewer and fewer resources, and yet I have a constitutional obligation to make sure the court houses are kept open.
cw: What did the data show?
marshall: How many people it takes to process cases. Through the National Center for State Courts, we use the most sophisticated analysis that’s available to go into every courtroom and say, if you have an uncontested divorce with no children and no property, how many people does it take to process that case? I can now go on any single day into any courthouse in Brockton or Pittsfield or Fall River or Marblehead and look at how many cases are coming in the door, what kind of cases they are, and how many people I need to process them. Chief Justice Mulligan has said all along, and I agree with him, that we don’t want staffing at the 100 percent level, that we want to be reaching so that our judicial staff and our judges have enough resources but not an abundance of resources. We estimate about 90 percent of staffing level. The Land Court is now 40-something percent. We can see in different courthouses — particularly in the probate and family courts, where there has been a huge increase in the number of cases, and in the district court — that we’re way below staffing models. It will come as no surprise that the delivery of justice is very people-intensive. Technology can do so much. Buildings can do so much. But basically it’s a people-driven business. So focusing on the staffing models gave me the very first way to determine when we are headed into crisi