© Margaret H. Marshall 2012

Dean of the Radcliffe Institute for Advanced Study, Dean Cohen, former Radcliffe dean Barbara Grosz, former Radcliffe dean and now president of Harvard University, Drew Faust, and friends all:

What a great privilege it is for me to be standing here today. I have attended this annual luncheon for many years; for me it is always a highlight of the commencement season, this wonderful time of year when new generations of students leave to commence their adult lives, enriched we hope by teachers who have imparted to them the values of openness, curiosity, critical analysis, and deep respect for the dignity of others; respect for the diversity of people and the diversity of ideas; and the courage to question.

Second, coming to this annual luncheon reminds me always of the extraordinary women, many of whom are here today, on whose shoulders women of my generation and younger now stand. I, we, could never, never, have accomplished whatever we have, without the fighting spirit, the sheer bloody-mindedness and the decades of relentless struggle of those women who refused to accept that we are less than men, and who worked tirelessly to tear down “every arbitrary barrier” in the path of full equality for women.²

Much of that struggle is documented with great care in Radcliffe’s own jewel in the crown, the Arthur and Elizabeth Schlesinger Library on the History of Women in America, one of the largest repositories of manuscripts and archives for research on our history. Much of my life and all of my professional life has been spent here in Massachusetts, and it is my hope that adding my papers to that great collection may in some small way expand our understandings “about women and gender” and “reveal new lines of inquiry about the history of the United States.”³

I

This afternoon, even as we join in this festive time together, and even as we celebrate all that women in the United States have achieved since Radcliffe’s founding at the end of the 19th century, I want to share with you some concerns that I have about these United States at the beginning of the 21st century. To do so, I turn first to my own beginnings, in Newcastle, a small village in the foothills of the Drakensberg Mountains, that great mountain spine that runs north–south through one of God’s special gardens—South Africa.

I was born and spent my childhood in what Nobel Prize winner Nadine Gordimer has called the “rigidly racist and inhibited colonial society” of small-town, provincial South Africa.⁴ Apartheid was the law of the land, and while my childhood years were secure and comfortable, life was very different for the majority of South Africans, black South Africans, those who waited on and worked for us, whose “townships” (ghettos) lay beyond the confines of my comfortable home.

Today, when I use the word “apartheid,” I wonder whether my audience will really know what it meant to live in that system of racial intolerance. You surely understand that South Africa’s apartheid laws had one primary aim: to protect and consolidate the power of the powerful. You surely know that teachers and doctors and lawyers were imprisoned, tortured, or forced by the apartheid government to leave South Africa, as often as not because of the views they held and the ideas they expressed. You surely comprehend that women and men were treated as subhuman simply because of the color of their skin. Apartheid: an entire sophisticated, modern industrial society tethered by law to the idea that whites are superior in every respect to blacks.

The existential blindness of white South Africans to apartheid was banal, quotidian, and almost universal. "How could white South Africans not see?” I am asked. And more penetratingly: “What took you on the path from that isolated village in South Africa to the Supreme Judicial Court of Massachusetts?”

The answers to those questions are many and complex. But two things had a profound influence on my life. First, a liberal education that began for me here in the United States. And second the discovery, again here in the United States, that an alternative, a real alternative, existed to the rule of brute power that I had experienced in South Africa.

Education: In 1962, I came to the United States—Wilmington, Delaware—as a high-school exchange student. I was astonished to find the day’s great issues—civil rights, Soviet missiles in Cuba—fervently and openly debated. Education. In Wilmington, I could read books outlawed at home. I read Alan Paton's Cry, the Beloved Country, and for the first time learned of the long struggle for freedom in my own country. Education. For the first time in my life, I was free to roam through the marketplace of ideas, to expand my horizons, to speak my mind. I was free to change my mind. The social arrangement of apartheid, the lens through which I had been taught to view all social relations, revealed itself as a distorting prism of terror and fear. I returned home to South Africa wearing a new pair of glasses.

Ten years later, turbulent and challenging years for me, I found myself back in the United States, at Yale Law School. The United States is committed to the ideal of equal justice under law. Here I saw the rule of law, the “rule of democratic law,”⁵ in action. It opened school doors for black children. It dislodged a president for abuse of power. It gave women control over our bodies. What I learned at Yale gave voice, gave structure, to the ideals I had yearned for in South Africa: a just society, a society founded on the rule of law.

II

A liberal education, free, quality public education and the rule of democratic law, equal justice for all: these two pillars of American life have drawn millions to our shores, and continue to do so. And so it has been for me: for me this country has more than fulfilled the promise of our nation’s founders. They well understood that “a government of laws and not of men,”⁶ I quote there from the Massachusetts Constitution, could not long exist without an educated public. “Wisdom and knowledge diffused generally among the body of the people,” said John Adams, the drafter of that Constitution, are “necessary for the preservation of their rights and liberties, and. . .these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of people.”⁷ Spreading the opportunities and advantages of education, and preserving the rights and liberties of all have made the United States a great nation.

But I have deep concerns now for the country I have come to love and call my own. Through my work as chief justice of Massachusetts, I have seen firsthand that education, our schools, and justice, our courts, are in danger—real danger of failing in their critical missions. Time does not allow me today to talk about the problems of our schools. My remarks will focus on threats to the second pillar of our American democracy: fair and impartial courts.

Every day in courts across this Commonwealth, judges give meaning to the command of the Massachusetts Constitution, the oldest written constitution in the world: “It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the law, and the administration of justice.”⁸ That there be an impartial interpretation of the law. Could anything, anything, be more compelling, more foundational to our democracy than the constitutional command that judges be impartial?

Not so, it appears, to a wide swath of political leaders and pundits, and not so, it appears, to some justices of the Supreme Court. To the contrary, today we are witnessing a full-scale assault on the foundational notion that judges should decide cases on the facts and law alone. Increasingly strident politicians have been taking to the airwaves arguing that judges should not be neutral, should not be impartial, but should check the opinion polls before issuing a decision.

The assaults are not confined to a few state legislators who file bills to jail judges for unpopular opinions.⁹ The assaults are being mounted at the highest levels. One recent candidate for president of the United States ran on the promise that, if elected, he would ignore—ignore—the holdings of Supreme Court decisions with which he disagrees.¹⁰ “I'm fed up with elitist judges” who seek to impose their “radically un-American” views, the candidate said¹¹ and proposed to subpoena judges to appear before Congress to answer for unpopular decisions.¹² Another presidential candidate believes that Congress should exercise a legislative veto over Supreme Court decisions.¹³ Congressional leaders have vowed to “punish”— and that is their word, “punish”—judges for unpopular opinions.¹⁴ This is not good faith criticism of a court decision, a judge, or a judicial philosophy—all of which are welcome and necessary in a robust democracy. This is demagoguery.

Of particular concern to me is the manner in which the First Amendment is being used as a Trojan horse by those who seek to undermine the notion of impartial justice. Would that I could tell you that the United States Supreme Court is acting to forestall this. To the contrary, a majority of the justices are leading the charge.

Republican Party of Minnesota v. White.¹⁵ An overwhelming number of states in our country elect some or all of their judges. At issue in the White case was whether a provision of the Minnesota canons of judicial conduct (those are the ethical rules that judges must follow) violated the freedom of speech guarantee of the First Amendment. The rule prohibited candidates for judicial office from “announc[ing]” their views on “disputed legal or political issues.” The Supreme Court held, in essence, that the First Amendments rights of judicial candidates to announce their opposition to abortion, for example, or in favor of the death penalty trump the state’s interest in preserving the impartiality of the judiciary by restricting such statements.

Most disturbing in that case is the short shrift given by the court to the very notion that judges must be, or even can be, impartial. On this point Justice Scalia, writing for the court, is nothing short of contemptuous. Under settled First Amendment analysis, Minnesota was required to demonstrate that its “announce” prohibition was necessary to protect a “compelling state interest.” A “compelling” state interest is the standard that must be established to defeat a First Amendment challenge to a government rule, as the judicial canons are. Minnesota took the position that the “announce” prohibition helped preserve the impartiality of its courts, which it argued was a compelling state interest. Methinks that John Adams would readily have agreed. Not so our Supreme Court.

Noting that Minnesota did not “bother to define” (those are the court’s words) impartiality, Justice Scalia suggests his own. Perhaps, he muses, impartiality means the lack of bias for or against a particular party to a particular legal proceeding. Certainly, he writes, a party who takes a legal position against one previously announced by the judge “is likely to lose”—those are Justice Scalia’s words, “likely to lose”.¹⁶ No problem with that, he concludes. So long as any party taking that position is likely to lose, the judge is applying the law “evenhandedly.” I could not disagree more strongly. In my experience, judges (other than the most riven ideologues) try to place aside, and succeed in placing aside, their personal views, announced or not, in deciding what the law—impartially applied—requires. It troubles me, troubles me deeply that our nation’s highest court claims otherwise.

Or suppose, writes Justice Scalia, impartiality means a “lack of preconception in favor of or against a particular legal view.”¹⁷ This, he says, is not a compelling state interest that could justify restricting the speech of a candidate for judicial office. No judge is a blank slate, he says, and “pretending otherwise by attempting to preserve the ‘appearance’ of that type of impartiality can hardly be a compelling state interest either.”¹⁸ Justice Scalia seems intent on giving license to those who would impose their own particular legal view on litigants who come to our courts seeking an impartial interpretation of the law.

Last, Justice Scalia considers whether Minnesota’s rule was designed to protect “open mindedness,” a judge’s “willingness to consider views that oppose his preconceptions.” “This sort of impartiality seeks to guarantee each litigant”—pay attention here—“not an equal chance to win the legal points in the case, but at least some chance of doing so.”¹⁹ This type of impartiality and the appearance of this type of impartiality may be “desirable” in the judiciary, he says, but nothing more.

What a crabbed view the Supreme Court has articulated of the constitutional promise of unbiased courts, of impartial judges. And to devastating effect. Perhaps you think I am being alarmist. The justices in dissent—justices Stevens, Ginsburg, Breyer, and Souter—would disagree, and history has confirmed their judgments. Justice Stevens excoriated the majority for “obscuring the fundamental distinction between campaigns for the judiciary and [campaigns for] the political branches” based on a “flawed” and “inaccurate appraisal of the importance of judicial independence and impartiality.”²⁰ For Justice Ginsburg “[w]hen a judicial candidate promises to rule a certain way on an issue that may later reach the courts,” the potential for due process violations is, in her words, “grave and manifest.”²¹ I agree.

The White decision has opened a Pandora’s box of noxious influences on the principle and the reality of fair, impartial justice in our state courts. Lower federal courts have relied on White’s First Amendment analysis to strike down other rules of judicial canons of ethics aimed at ensuring the integrity of our courts: the so-called “pledges, promises, and commitments” rule that prohibits judges and judicial candidates from promising in advance to decide certain cases a certain way; rules prohibiting judges from personally soliciting campaign donations; and rules restricting judicial candidates from engaging in partisan political activity.²² All are gone in the wake of White. Implicit in our constitutional compact is the guarantee that judges will give each person a fair hearing; will consider only the evidence presented in court; and will not look outside the courtroom to reach a decision. White and its progeny, which privilege the speech of judicial candidates over the integrity of courts, strain this compact to the limits.

The results? About what you would expect. In many jurisdictions, judicial candidates now ardently commit themselves to rule a certain way on issues that may come before them. They publish deliberately misleading statements—attack ads and slur campaigns—about their judicial opponents. A judge who can send a litigant to jail for lying may have become a judge by doing no less in his political campaign.

Of course, it takes money to fund an attack ad. In recent years, special interest groups have been pouring millions of dollars into judicial campaigns to elect a judge amenable to their interests.²³ One comprehensive report showed that from 2000 to 2009, judicial candidates raised more than 200 million dollars—more than double the amount raised in the preceding decade.²⁴ Worse, campaign contributions to judicial elections frequently are secret.²⁵

Another predictable result? “The crisis of confidence in the impartiality of the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that courts are supposed to uphold.”²⁶ These are the words of Justice Sandra Day O’Connor who has been sounding the alarm across this country. “Three out of every four Americans believe that campaign contributions affect courtroom decisions,” she said.²⁷

The Supreme Court’s much-criticized 2010 opinion, Citizens United v. Federal Election Commission,²⁸ adds oil to the fires already burning in state judiciaries across the country. Almost all of the commentary—and certainly the commentary in the electronic media— has focused on the consequences of that decision for presidential or congressional races. The less heralded consequences for judicial elections are even more troubling, as Justice Stevens noted in his powerful dissent: “Today,” he wrote, “the court unleashes the floodgates of corporate and union general treasury spending” on judicial elections. States, he said, “may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.”²⁹

The backlash against Citizens United has been as fierce as the opinion itself was radical, and perhaps that is a hopeful sign. One state has already tried to reign in the harm. Last year, the Supreme Court of Montana essentially repudiated the rationale of Citizens United as applied to Montana, finding that Montana’s restrictions on direct spending by corporate entities was appropriate under the First Amendment. The reason? Because, the Court said, the people of Montana had the right to uncorrupted government, where each individual’s vote counts. As for judges, the Montana court held that the state had a “continuing and compelling interest in protecting and preserving” the people’s “constitutional right to an independent, fair and impartial judiciary.”³⁰ Is it too much to expect the United States Supreme Court to say the same?

The fate of the Montana case is uncertain; the Supreme Court is considering whether to grant review in the case. What is clear is that Citizens United bodes ill for the health of state judiciaries that elect their judges, which are already awash in a torrent of special interest money. “Harsh state judicial campaigns financed by ever larger amounts of special interest money are eating away at public faith in judicial impartiality,” an editorial in the New York Times recently concluded.³¹ Can anyone be surprised?

Constitutional democracy, although surely imperfect, is the best mechanism we have to ensure that debates about deeply divisive national issues will take place according to the rule of law and not the law of the ideologue or the law of the mob. In a speech at Georgetown University widely reported in this country and abroad, Justice Sandra Day O’Connor voiced concern about “the efforts of those who would strong-arm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship,” she said, “but we should avoid these ends by avoiding these beginnings.”³² Justice O’Connor is not known for hyperbole.

III

I return to my beginnings. I grew up in a country where the government controlled the courts, where judges were powerless to declare a law passed by the apartheid parliament to be inhumane, oppressive, or discriminatory. Do we here in this great country really want a legal system where judges write for popularity and not for justice? The warning signs are there for all to see. The question is: have we the will to protect the structure of government that for so long has protected us?

I am immensely grateful to Sandra Lundy who assisted me in the preparation of these remarks.

Endnotes:

1. Margaret Fuller, Woman in the Nineteenth Century (1845), quoted at http://www.massmoments.org/moment.cfm?mid=152 (last visited May 23, 2012).
2. Donor Questionnaire of the Arthur and Elizabeth Schlesinger Library on the History of Women in America, on file.
3. Nadine Gordimer, Banquet Speech, December 10, 1991, upon receipt of the Nobel Prize in Literature 1991. See http://www.nobelprize.org/nobel_prizes/literature/laureates/1991/gordimer-speech.html (last visited May 12, 2012).
4. “The Nazi government acted upon laws that it created for itself. This is not the Rule of Law that we are asked to preserve. The Rule of Law of which we speak is the rule of democratic law. It is the law that is accepted by the people via their representatives. It is the law that strikes the appropriate balance between the needs of the state and the rights of the individual. Thus, democracy is not only majority rule. Democracy is also human rights. A majority that negates the rights of the minority injures democracy.”
   Aharon Barak, President of the Supreme Court of Israel. Keynote Address, upon receiving a Doctorate Honoris Causa from Brandeis University, May 18, 2003 (on file). See http://www.ruleoflawus.info/Judiciary/Judge%20Barak%20at%20Brandeis.pdf (last visited June 17, 2012).
5. Constitution of the Commonwealth of Massachusetts, Part The First, A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts, Art. XXX.
6. John Adams, Thoughts on Government (1776). See http://www.dianedrain.com/OurFirm/Founders%20Quotes.htm (last visited May 23, 2012).
7. Constitution of the Commonwealth of Massachusetts, Part The First, A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts, Art. XXIX, emphasis added.
8. See the discussion of the South Dakota “J.A.I.L.4 Judges” ballot initiative at http://blogs.wsj.com/law/2006/11/08/south-dakotas-jail-4-judges-measure-fails-2/ (last visited May 23, 2012). See also http://www.tulanelink.com/jail/abajournal_06a.htm (last visited May 23, 2012).
9. See http://www.guardian.co.uk/world/2012/jan/19/newt-gingrich-ignore-supreme-court-president (last visited May 24, 2012). See also http://www.huffingtonpost.com/lyle-denniston/gingrich-supreme-court_b_1017418.html
10. See http://articles.latimes.com/2011/dec/17/news/la-pn-gingrich-judges-20111217 (last viewed May 24, 2012).
11. See http://www.abajournal.com/news/article/gingrichs_plan_to_chastise_judges_subpoena_them_ignore_their_decisions/.
12. Mark Sherman, “Republican Presidential Candidates Would Slash Power For Federal Judges,” Huffington Post, June 6, 2012, (noting, inter alia, that “Republican candidate Herman Cain joined [Michelle] Bachmann and [Newt] Gingrich in endorsing legislation that would overturn the high court’s rulings declaring that women have a constitutional right to abortion. The proposal challenges the widely held view that Congress can’t overrule the court’s constitutional holdings”), available at http://www.huffingtonpost.com/2011/10/23/republican-presidential-candidates-judges_n_1027096.html (last visited June 6, 2012).
13. See, e.g., David D. Kirkpatrick, “Republican Suggests a Judicial Inspector General,” the New York Times, May 10, 2005 , at A12 (“To preserve the independence of the judiciary, [Congressman James] Sensenbrenner said, Congress should not seek ‘to regulate judicial decision-making through such extreme measures as retroactively removing lifetime appointees through impeachment.’ But he continued, ‘[t]his does not mean that judges should not be punished in some capacity for behavior that does not rise to the level of impeachable conduct.’ ‘The appropriate questions,’ he added, ‘are how do we punish and who does the punishing’”).
14. 536 U.S.765 (2002).
15. Id. at 777.
16. Id. (emphasis in original).
17. Id. at 778.
18. Id. (emphasis in original).
19. Id. at 797 (Stevens, J., dissenting).
20. Id. at 816 (Ginsburg, J., dissenting).
21. See generally American Judicature Society, Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (last updated October 6, 2011) (on file).
22. 23 See generally Susan Liss and Adam Skaggs, “Justice for Sale?” in 4 Brennan Center for Justice, Democracy & Justice: Collected Writings 83, 83 (2011).
23. Id.
24. “Fairer Ways to Choose Judges,” the New York Times, May 23, 2012, Editorials p. A20.
25. Sandra Day O’Connor, “The Judicial Election Money Spiral,” in Democracy & Justice: Collected Writings (note 23 suprar) at p. 82.
26. Id.
27. 558 U.S. ___, 130 S. Ct. 876 (2010). In Citizens United, the court held, in what Justice Stevens in dissent termed “a radical departure from what had been settled First Amendment law,” that corporations and unions have broad First Amendment rights to engage in speech. See 130 S. Ct. at 948 (Stevens, J., dissenting).
28. Id. at 968 (Stevens, J., dissenting).
29. Western Tradition Partnership, Inc. v. Attorney General, Montana Supreme Court, No. 2011 MT 328 (decided December 30, 2011), slip op. at 24.
30. “A Study in Judicial Dysfuntion,” the New York Times, August 11, 2011, Editorial p. A20.
31. Nina Totenberg, O’Connor Decries Republican Attack on Courts, National Public Radio broadcast (Mar. 2006), transcript available at http://www.npr.org/templates/story/story.php?storyId=5255712 (last visited June 6, 2012). See also Julian Borger, “Former Top Judge Says US Risks Edging Near to Dictatorship,” Guardian, Mar. 13, 2006.