Retirements mean Baker will reshape state’s high court

 Justices Robert J. Cordy and Fernande R.V. Duffly have announced early departures. Three others will step down as they near the mandatory retirement age of 70.
Justices Robert J. Cordy and Fernande R.V. Duffly have announced early departures. Three others will step down as they near the mandatory retirement age of 70.ROBERT E. KLEIN FOR THE BOSTON GLOBE/FILE 2015

Fernande R.V. Duffly on Wednesday became the third justice in a week to announce an impending retirement from the Massachusetts Supreme Judicial Court, giving Governor Charlie Baker an unusual chance to quickly put his stamp on one of the most influential state courts in the country.

Two other justices will be required to retire from the state’s highest court next year when they reach the mandatory retirement age of 70, leaving Baker with at least five vacancies to fill on the seven-member panel in his first term.

“This is an unprecedented occurrence,” said Martin W. Healy, chief legal counsel and chief operating officer for the Massachusetts Bar Association. “It gives the governor the opportunity to put his indelible mark on another branch of government.”


Baker is a Republican who has governed from the center since he took office last year, and he is widely expected to make appointments in that vein.

Last week he praised two of the outgoing justices, Robert J. Cordy and Francis X. Spina, as models for the sort of judges he would appoint — “very straightforward, very thoughtful” jurists “who let the facts and the law take them where they need to go when they make decisions.”

Leonard Lewin, who served as chief legal counsel to Republican Governors Paul Cellucci and Jane Swift, said he expects Baker to rebalance what he describes as a left-leaning court. “I would think you’d see more of a move to the middle, a slightly more conservative approach than the liberal approach that’s been there the last eight years,” he said.

But former SJC chief justice Margaret Marshall warned against predictions of any ideological shift — in part because it’s so hard to forecast how any particular judge will come out on a case.

Marshall, appointed to the court by GOP Governor William Weld, wrote the SJC’s landmark same-sex marriage decision in 2003.


The SJC is widely considered one of the nation’s most important state courts. A study published in the University of California Davis Law Review in 2007, taking decades of decisions into account, ranked the SJC the nation’s sixth-most influential, behind high courts in California, Washington, New Jersey, Kansas, and Minnesota.

In recent years, the SJC has barred police from ordering people out of parked cars simply because they smell marijuana, struck down life sentences without parole for juveniles, and ruled that lenders cannot foreclose on homes without the proper paperwork.

Chief Justice Ralph D. Gants has also emerged as a vocal advocate for repealing mandatory minimum sentencing laws for drug crimes. In an interview Wednesday, he said he expected to continue that advocacy, even with a reconstituted court.

“I think my views are, generally, quite widely shared among judges,” he said. “I don’t think anybody who has been involved in criminal sentencing for very long has not had a case in which they have had to sentence somebody to a sentence which they may consider to be inappropriate.”

Governor Deval Patrick made five appointments over two terms — just as many as Baker appears to have pending, though Patrick’s took place over a longer period. He named the SJC’s first black chief justice, Roderick L. Ireland; its first black woman, Geraldine S. Hines; its first Asian-American, Duffly; and its first openly gay jurist, Barbara A. Lenk.


When Gants was sworn in as chief justice in 2014, he marveled at the diversity of the SJC, calling it “a court where two justices have a spouse named Deborah, one justice a man, the other a woman.”

He said his own appointment marked “two historic firsts: the first Jewish chief justice and the first chief justice to play soccer in the over-the-hill league.”

Baker has signaled that he will continue the focus on diversity. On Wednesday, he named a special committee to vet applicants, and his order establishing the group said “applicants should be drawn from a cross-section of our community, and should represent not only geographically diverse regions of the Commonwealth,” but “also the racial, ethnic, and gender diversity of our citizens.”

The SJC retirements were not entirely unexpected. And the timing means the administration will have about seven months to get new justices installed before the fall term.

Still, that’s a tight window. John Sivolella, who is launching a new public interest law initiative at the right-leaning Pioneer Institute in Boston, said the governor will be turning the SJC “overnight from a Patrick court to a Baker court.”

“He has to do it right,” Sivolella said. “It suddenly becomes a major policy issue for him — a reelection issue, a governance issue. So it’s a really cool opportunity, but a lot of work.”

Cellucci faced a similar, if not quite so heavy, crunch. He appointed four new justices and elevated one to chief justice between October 1999 and February 2001.


“It was a heady time,” said Lewin, Cellucci’s former chief legal counsel, recalling work nights that stretched to 2 a.m. “It’s such an important thing to have a Supreme Judicial Court that’s made up of people that are very good at what they do. . . . It goes so far, for the legacy of not only the governor, but of the Commonwealth.”

In addition to the three justices who have recently announced their departures, Margot Botsford and Geraldine S. Hines,will reach the mandatory retirement age next year.

Baker’s nominees will have to win approval from the eight-member Governor’s Council, with the lieutenant governor casting a tie-breaking vote if required. The councilors, who approve the vast majority of nominees, all have their own criteria.

Robert L. Jubinville, a Milton criminal defense lawyer who sits on the panel, said he would like to see nominees with experience in the Massachusetts court system. He will also weigh their views on social issues like same-sex marriage, abortion, and the death penalty.

His one firm requirement, he said, is that justices have an understanding for issues of addiction. “I don’t want any more people sitting in cages because they failed a urine test,” he said.

David Scharfenberg can be reached at david.scharfenberg@globe.com. Follow him on Twitter @dscharfGlobe