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Susan Estrich
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Law and Politics

Comment

On Friday, May 25, the Radcliffe Institute honored Margaret Marshall, a.k.a. Margie, the brilliant and charismatic former Chief Justice (first woman) of the Massachusetts Supreme Judicial Court. She is best known for her opinion holding that same-sex couples have an equal right to marry under the Massachusetts Constitution, but that is only one of many carefully reasoned opinions authored by her in her years on the court.

Margie's speech was about the rule of law and what she sees as the threats to an unbiased and independent judiciary, which is at the core of a government of laws and not men (and women). Margie herself is a native of South Africa. She came to this country because her leadership of other college students protesting apartheid left her no choice but to flee her home. So when it comes to the rule of law, she comes to the issue with an appreciation for that particular miracle borne of experience.

In her speech, which was typically brilliant and stirring, she warned of what she sees as the political threats to the independence and impartiality of judges. She decried the decisions striking down laws that said candidates running for judgeships should not announce how they would rule on particular cases. She expressed grave concern for the increasing role of unrestricted money in judicial election campaigns. And she singled out the comments of one unsuccessful presidential candidate who literally said that he would not follow Supreme Court decisions with which he disagreed.

She got a standing ovation. Well deserved, in my opinion.

The next day, I got on a plane and flew to Ukraine.

This is a beautiful, fascinating, exciting country. It is also a place where you cannot help but realize just what a miracle it is to live in a country where lawyers practice law without fear, where judges are expected to decide based on law and not political ties, where we can worry about the corrupting influence of money rather than old-fashioned and dangerous corruption.

For the past two days, my law partners and I have been talking to lawyers who are on the front lines of creating a legal system in a country that literally did not have lawyers until 1991.

Many of the "stars" looked like kids to us, and why not? They are the first generation of lawyers. We heard about what works here and what doesn't, and about the firm that was destroyed when police came in and seized their computers and their files. We heard about contracts — and there are many — that specifically state that they are to be enforced in London under English law, and not here in Ukraine, where they are entered into and actually carried out. We met with lawyers bursting with energy about the future they are building, and dour types who seem resigned to the obstacles to enforcing judgments and securing justice.

It is not easy to create the rule of law in a country that never had it. It is not easy to convince people that there can be such a thing as an impartial judiciary composed of men and women who make decisions based not on who is in power, but on how they read the Constitution and how they interpret statutes, judges who agonize about justice and not politics.

I am not so naive as to believe that anyone — and certainly not anyone who gains their position by getting elected or by getting appointed by a politician — is truly apolitical. When Supreme Court nominees describe themselves as "umpires" and then go on to vote consistently with the other justices who were appointed by the same political party, you would have to be naive to think that the courts are above politics. There is only so far a courageous judge can go in getting ahead of the popular political will.

Margie pushed the envelope, and it moved, but there were many who feared that the court had gone too far and too fast, and those fears were grounded in political realities that judges ignore at their peril.

Still. Sitting in a country where a prominent law firm can be destroyed by a search and seizure for which there was apparently no judicial recourse reminds me of both how complicated and precious our system of justice is — and of how unbelievably lucky we are. Conservatives and liberals, Republicans and Democrats, straight and gay, rich and poor, we are fortunate to be able to take the existence of such a system, with all its imperfections, for granted.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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Comments

14 Comments | Post Comment
It's so great to see that 'Margie' "carefully reasoned" her opinion os "same-sex couples have an equal right to marry." Does that mean heterosexual and homosexual same-sex couples? Or just homosexual ame-sex couples? And why is that? What's the difference? Oh, I know -LOVE and SEX! Now where in the constitution are the words love or sex mentioned?
And where is the word 'marriage' mentioned or defined?
Liberalism at it's best! God help us.
Comment: #1
Posted by: Early
Wed May 30, 2012 5:41 AM
True Early. Marriage is not defined in the Constitution. Anything not specifically in the Constitution is delegated to the states. So in this case, a state supreme court deciding this issue is the Constitutional thing to do. Having the states do a statewide vote on this issue is even better. Maybe Mass did this. I'm not sure.
Comment: #2
Posted by: Chris McCoy
Wed May 30, 2012 6:59 AM
“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams 2nd US President. Making something "legal" doesn't make it right.
Comment: #3
Posted by: David Henricks
Wed May 30, 2012 7:36 AM
Re: Chris McCoy
So - the States have the ability to change defintions. Great - let's change the defintion of 'states'.
Comment: #4
Posted by: Early
Wed May 30, 2012 7:42 AM
Re: Chris McCoy
So because words are not contained in the US Constitution they can be redefined by the States. Let's redefine the word 'State'.
Comment: #5
Posted by: Early
Wed May 30, 2012 7:49 AM
Early, I don't know what exactly you're trying to accomplish. The 50 states have already been well-defined. If one state changed the definition, another might disagree. David, I like that quote and I agree. There are plenty of examples, one I'm sure on the top of all our minds when we think of them. But what changes are you saying need to happen?
Comment: #6
Posted by: Chris McCoy
Wed May 30, 2012 9:26 AM
But the 50 states are not defined in the constitution!!! Therefore, seems that most of them are unconstitutional by the reasoning of McCoy/Early/Hendricks and the other pseudo-constitutionalists commenting herein. Maybe only the first 13 should be able to determine what marriage is.... In seriousness, marriage is a religious institution and government should have no part in it at all even traditional man/woman marriage. The government--federal and state--should only deal with civil contracts between adults to gain things like tax breaks and hospital visitation, whatever their inkling. Then, by the constitution, no State could treat one pair (or grouping) of adults any different from another.
Let the churches deal with marrying folks however they see fit.
My lot is with Groucho Marx: "I'm sick of these conventional marriages. One man and one woman was good enough for your grandmother, but who wants to marry your grandmother?"
Comment: #7
Posted by: tomBrown
Wed May 30, 2012 6:55 PM
Re: Chris McCoy
Where did the other seven go?
Comment: #8
Posted by: Paul
Wed May 30, 2012 7:19 PM
Tom I agree. Marriage is a religious concept and the government should only deal with the legal part of it. But we are having trouble getting to that point. I get the impression that all most gays want are civil unions, but there are others that insist on getting married. This isen't an issue thats going away any time soon and its a shame because there are much more pressing issues out there. Paul I don't know what you mean.
Comment: #9
Posted by: Chris McCoy
Wed May 30, 2012 7:39 PM
At least they didn't bore you with tales of their kings and queens.
Comment: #10
Posted by: Liam Astlel
Thu May 31, 2012 2:46 AM
Re: Chris McCoy
1.Obama's USA has 57 states.
2. Why can't same-sex heteosexuals living together have same rights as married couples?
Comment: #11
Posted by: Early
Thu May 31, 2012 8:07 AM
What are the other 7 states? Are they the countries he's currently invading? Most same sex straight people living together are probably living together for convenience. Roommates are often temporary and I doubt many same sex straight people planning on living with that person for the rest of their lives.
Comment: #12
Posted by: Chris McCoy
Thu May 31, 2012 9:10 AM
Re: Chris McCoy
1) Check it out on internet.
2) Where is THAT defined in the Constituion?
Comment: #13
Posted by: Early
Fri Jun 1, 2012 6:42 AM
Its not described in the constition, its my personal opinion. The constitition was meant on purpose to be vauge so it can adapt to the times. Anything not covered is up to the states to decide. Some states are shooting down gay marriage and civil unions while others embrace it. I think thats the way it should be.
Comment: #14
Posted by: Chris McCoy
Fri Jun 1, 2012 6:48 AM
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