President Trump will soon announce his nominee to fill the vacancy of Antonin Scalia on the Supreme Court, and he may have to opportunity to further reshape the court during his administration. But Governor Charlie Baker of Massachusetts has the chance to reshape the Massachusetts Supreme Judicial Court right now; he is about to fill five vacancies in a seven-person court because of mandatory retirement at age 70.
The SJC is this Commonwealth’s treasure. It is the oldest continuously functioning appellate court in the western world. It is the final authority on the Massachusetts Constitution, which is itself one of the oldest written constitutions. And that role has assumed special significance as the United States Supreme Court has become more and more conservative. Since the 1980s, the SJC has been far more protective of rights than has the Supreme Court, functioning as a bulwark to the Supreme Court’s rightward tilt.
The SJC’s decisions are widely cited and followed by courts across the country. They are reprinted in law school texts and cited by scholars. The court has helped define the view that a state constitution is a robust and significant living document, to be interpreted independent of US Supreme Court precedent.
Decades ago, the SJC declared the Massachusetts death penalty unconstitutional. It affirmed a woman’s right to choose abortion under the Massachusetts Constitution. Its decisions on the application of constitutional protections for search and seizure to new technology have led the way for other courts. It has issued innovative decisions with respect to the rules governing eyewitness identification. It has led all courts — the Supreme Court included — in dealing with the problem of racial bias in jury selection or racist comments within the jury room. And most recently, by a 4-3 decision, the first in the country, the court declared prohibitions on same-sex marriage to violate state constitutional protections. In that case, the Supreme Court followed its lead.
This record is in no small part because past governors put giants on this court — professors Ben Kaplan, Charles Fried, Oliver Wendell Holmes, and Robert Braucher, all of Harvard Law School; Margaret Marshall, who authored the same-sex marriage decision; Justice Herbert Wilkins and his father, Raymond, to name a few. Over its history, three of its members resigned to join the United States Supreme Court.
And what is even more significant about those distinguished jurists is that they were all appointed by Republican governors — governors who acutely understood the stature of this court and its special role.
Governor Baker has already filled three vacancies with able jurists, but the next two vacancies are even more significant. He will shortly have the chance to replace Justices Margot Botsford and Geraldine Hines, whose contributions to the court have been unique. Justice Botsford had a distinguished career in the state attorney general’s office and the Middlesex DA’s office, along with a career in private practice. Justice Hines was a civil rights lawyer and criminal defense lawyer before being appointed to the Superior Court.
Filling these vacancies will change the court for years to come. The president could not be more clear. He is looking to further a right-wing Republican agenda with his appointments to the Supreme Court. And that agenda, if it influences the new SJC to any degree, would undermine decades of Commonwealth precedent. This is the time to be more than the not-Trump. This is the time for the governor to use this extraordinary opportunity to maintain the traditions of an independent and distinguished court.Nancy Gertner, a retired federal judge, is a professor at Harvard Law School.