FRIEDMAN.

ROUND 6 5/9/2008 4:37:08 PM

ESSAY

JUSTICE MARTHA B. SOSMAN AND

THE JURISPRUDENCE OF RIGHTS
AND REMEDIES

LAWRENCE FRIEDMAN *

I met Massachusetts Supreme Judicial Court Justice Martha B.

Sosman only once, at the New England Appellate Judges Conference in
December 2004. The conference organizers had invited me to join Robert
Williams in a presentation on the issues of constitutional interpretation and
application raised by the new judicial federalismthe phenomenon of
state court reliance upon state constitutions to resolve individual rights
challenges to government action. Among other cases, I discussed the
Supreme Judicial Courts decision in Goodridge v. Department of Public
Health, in which the court held that the denial of marriage licenses to same-
sex couples violated the state constitutional commitments to equality and
due process.1 I argued that Goodridge could be viewed as an exemplar of
judicial restraint: not only did the holding flow logically from equal
protection precedent under the Massachusetts Constitution, but the majority
opinion left intact all other rules regarding marriage as well as the
legislatures authority to regulate marriage.2
This is, admittedly, an idiosyncratic view of Goodridge, and it was
one not shared by certain members of the Supreme Judicial Court in
attendanceJustice Sosman among them.3 Yet, after Professor Williams

* Associate Professor of Law, New England School of Law. My thanks to Vic

Hansen, Rene Landers and Bob Williams for helpful comments and guidance.
1. 798 N.E.2d 941, 948 (Mass. 2003).
2. For a more elaborate discussion of this argument, see Lawrence Friedman, The
(Relative) Passivity of Goodridge v. Department of Public Health, 14 B.U. PUB. INT. L.J. 1
(2004).
3. 798 N.E.2d at 982 (Sosman, J., dissenting) (referring to the Goodridge decision as
an aberration).

397
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and I had concluded our remarks, she was the first to the rostrum, and we
discussed the difficulties inherent in implementing constitutional provisions
concerning individual rights. She was gracious, kind and exceedingly
generous with her time, the very model of judicial decorum: intellectually
curious, thoughtful, unpretentious, and decidedly modest.
I suspect few lawyers would have held a certain degree of immodesty
against Justice Sosman: in her years as a member of the Supreme Judicial
Court, she amply displayed her command of the law and, as important, the
ability to explain clearly and concisely why a dispute should be resolved in
a particular way. Her dissent in Goodridge presented in surprisingly few
pages a sound argument for the view that the court should have rejected the
plaintiffs challenge to the marriage law under rational basis scrutiny.4
What struck me recently about the Goodridge majority opinion is how
much the discussion of remedy recalls another, earlier case, Bates v.
Director of the Office of Campaign and Political Finance, in which the
court held that candidates for statewide office were entitled to public
funding under the states clean elections law.5 Justice Sosman not only
joined the majority in Bates, but, as the single justice to whom the court
remanded the matter,6 she oversaw the administration of the remedy in its
sequels, Bates v. Sullivan I & II.7 In Bates v. Sullivan II, she approved an
elegant resolution to the funding issue that at once allowed the judiciary to
enforce a personal right and honored the legislatures plenary policymaking
authority in respect to appropriations.
Though Justice Sosman disagreed with the outcome in Goodridge,
she may have seen in the courts stay of the entry of judgment an echo of
the remedy she approved in her Bates decisionsin the way that, in both
cases, the court sought to define rights and declare remedies so as to
encourage shared responsibility for the protection of rights. This Essay
explores the connection between the Bates decisions and Goodridge, and
concludes that Justice Sosmans instinct and judgment in Bates v. Sullivan I

4. See id.
5. 763 N.E.2d 6, 11 (Mass. 2002).
6. On the single justice session in Massachusetts, see Maura S. Doyle, Single Justice
Practice in the Supreme Judicial Court, in II APPELLATE PRACTICE IN MASSACHUSETTS,
21-1 (MCLE, Inc. 2d. ed. 2000 & Supp. 2004).
7. See Bates v. Sullivan I, No. SJ-2001-0448 (Sup. Jud. Ct. Suffolk Cty. Mar. 12,
2002) (Memorandum of Decision and Order on Plaintiffs Motion for Further Relief to
Satisfy This Courts Judgment), available at http://www.nvri.org/library/cases/
massachusetts/mass_sjc_memo_3_12_02.pdf [hereinafter Bates I]; Bates v. Sullivan II, No.
SJ-2001-0448 (Sup. Jud. Ct. Suffolk Cty. Apr. 5, 2002) (Memorandum of Decision and
Order on Plaintiffs Emergency Motion for a Levy on Property of the Commonwealth),
available at http://www.nvri.org/library/cases/massachusetts/Mass_memo_emergency_
motion.pdf [hereinafter Bates II].
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2008] OF RIGHTS AND REMEDIES 399

& II were true: those decisions and the remedial portion of Goodridge
speak to a jurisprudence that acknowledges a particular role for the
judiciary in a constitutional democracy, one that serves, by postponing
imposition of a judicial remedy, to promote rather than impede the
democratic deliberation of controversial public issues.

***
Lets begin with the cases, Bates first, focusing on the courts
remedial moves. In 1998, the voters in Massachusetts approved the Clean
Elections Law under the initiative provisions of Article 48 of the
Constitution.8 The law provided public campaign funding to candidates for
certain offices who agreed to limit the amount and sources of private
contributions.9 As of February 2002, the legislature, contrary to the
direction of Article 48, had neither repealed the law nor appropriated
adequate funding for it.10 The matter was referred to the full court by
Justice Sosman, sitting in a single justice session, to address the question
whether the director of the Office of Campaign and Political Finance had a
duty to distribute public funds to certified candidates when the legislature
had failed to appropriate any funds for that purpose.11 The Bates court
concluded that the clean elections initiative was validly enacted into law
by the people of Massachusetts, and that nothing in that law relieve[d] the
Legislature of its constitutional duties under art. 48.12
The court next addressed the question of relief, concluding that
certified candidates were entitled to clean elections funds under the
statute.13 Certification of a candidate, through which the candidate pledged
to adhere to the strictures of the clean elections law, represented an
affirmative act of the Commonwealth that statutorily [bound] it to provide
the benefit of the clean elections bargain.14 A candidate who abided by the
laws requirements could claim a judgment in his favor in the amount to
which he [was] entitled as a certified candidate.15 But the court could not
order the director of campaign finance to distribute funds that he did not

8. See Bates, 763 N.E.2d at 9.

9. Id.
10. See id. For further discussion of the events leading to and following the Bates case,
see Mark C. Miller, Conflicts Between the Massachusetts Supreme Judicial Court and the
Legislature: Campaign Finance Reform and Same-Sex Marriage, 4 PIERCE L. REV. 279,
290-92 (2006).
11. Bates, 763 N.E.2d at 10.
12. Id. at 11.
13. Id. at 24.
14. Id.
15. Id. at 28.
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400 NEW ENGLAND LAW REVIEW [Vol. 42:397

have, and which he could not reach; nor would the court enjoin the election
itself. It remained for the legislature either to fund or to repeal the clean
elections law,16 and the court presumed that the Commonwealth [would]
honor its obligations.17 Thus the court directed that the case be remanded
to the single justice, who would retain jurisdiction to, among other things,
entertain requests for relief from any candidate who was or might become
entitled to relief under the clean elections statute.18
The issue of remedy accordingly fell to Justice Sosman, again acting
in her capacity as single justice. The Bates plaintiffs moved for relief by
levy of execution on any and all accounts containing money belonging to
the Commonwealth.19 Justice Sosman noted that judgments against the
Commonwealth are ordinarily paid from an account known as the
judgments and settlements account, which is periodically replenished by
legislative appropriation,20 and the judgments owed the Bates plaintiffs
would be paid from that account as well, pending a future appropriation.21
At the time, in Bates v. Sullivan I, Justice Sosman denied the plaintiffs
relief; she acknowledged the delay in payment to the qualified clean
elections candidates would affect their campaigns, but concluded that the
legislature should be indulged the presumption it would fulfill its
obligations under the law. Nonetheless, she warned that an unreasonable
delay by the legislature in replenishing the judgments and settlements
account would compel the court to entertain alternative remedies, including
a levy of execution on the Commonwealths real and personal property.22
Less than a month later, the Bates plaintiffs again appeared before
Justice Sosman and requested just such relief. Their judgments unsatisfied,
the plaintiffs argued they were in the position of judgment creditors vis--
vis the Commonwealth and accordingly sought an execution so that they
[might] levy on tangible property of the Commonwealth.23 Justice Sosman
allowed the requested relief in Bates v. Sullivan II. She reasoned that the
plaintiffs judgment would notand could notbe satisfied by anything
other than actual payment of the funds owed them under the clean elections
law. The court, she observed, lacked any method by which it [might]
properly pressure the Legislature to take actionthe court, in other words,

16. See id. at 28-29.

17. Bates, 763 N.E.2d at 31 (quoting Bromfield v. Treasurer & Receiver Gen., 459
N.E.2d 445, 448 (Mass. 1983)).
18. Id.
19. Bates I, supra note 7, at 1.
20. Id. at 2.
21. Id. at 3.
22. Id. at 4.
23. Bates II, supra note 7, at 1.
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2008] OF RIGHTS AND REMEDIES 401

could not compel the legislature to appropriate funds.24 Further, at the time
of the plaintiffs request, the legislature had not acted in respect to its
obligations under the clean elections lawits failure to either fund or
repeal the Clean Elections law was, she concluded, an ongoing violation
of [the] constitution. 25
To be sure, Justice Sosman recognized that the legislature could not
act instantaneously. Still, by the time the plaintiffs had moved to levy on
Commonwealth property, more than two months had elapsed, and the
legislature had in that time manifested no intention to cure [the]
violation.26 She accordingly concluded that the remedy of execution was
appropriate in this instance: under long-standing precedent, that remedy,
though extraordinary, was within the courts power to order in the
circumstances; in the end, as Justice Sosman remarked, the court could not
shrink from doing justice.27
A little more than a year after the various Bates decisions issued, the
Supreme Judicial Court in Goodridge faced the question whether the denial
of civil marriage licenses to same-sex couples violated the commitments to
equality and due process under the Massachusetts Constitution.28 The court
concluded that the Commonwealths civil marriage exclusion implicated a
significant (but not fundamental) personal interest, and accordingly
subjected the regulatory denial of licenses to enhanced rational basis
reviewthe prohibition would survive constitutional scrutiny if the
Commonwealth could demonstrate that it had a legitimate regulatory
interest at stake, with a demonstrable connection between the legislations
ends and the means chosen to achieve those ends.29 The court determined
that the exclusion of same-sex couples from civil marriage did not
rationally further the Commonwealths admitted goals of providing a
favorable setting for procreation, ensuring an optimal setting for child
rearing, and preserving scarce financial resources.30

24. Id. at 3.
25. Id. at 4.
26. Id. at 5.
27. Id. (quoting Bromfield v. Treasurer & Receiver Gen., 459 N.E.2d 445, 449 (Mass.
1983)). Justice Sosman allowed that, in seeking to have the Commonwealth satisfy its
obligation, the plaintiffs were free to levy on any Commonwealth property they [chose]
real estate, equipment, vehicles, furniture, books, artwork, historic artifacts, etc. Id. at 6.
The sale of some state property did occur; ultimately, the clean elections law was repealed.
See Miller, supra note 10, at 292.
28. Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 950 (Mass. 2003).
29. See Lawrence Friedman, Ordinary and Enhanced Rational Basis Review in the
Massachusetts Supreme Judicial Court: A Preliminary Investigation, 69 ALBANY L. REV.
415, 418 (2006).
30. See Goodridge, 798 N.E.2d at 961-68.
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Upon concluding that the civil marriage exclusion violated the state
constitution, the court turned to the question of remedy and held that the
common law understanding of marriage would mean the voluntary union
of two persons as spouses, to the exclusion of all others.31 The court
remanded the matter to the trial court but stayed the entry of judgment for
180 days, so that the legislature could take such action as it [might] deem
appropriate in light of th[e] opinion.32 The court did not specify what the
legislature might do with this grace period, but the Goodridge opinion
supports the notion that it could codify the courts amendment of the
common law or consider an alternative remedy. In a subsequent decision,
the court indicated that it had expected the legislature, at a minimum, to
conform the existing statutes to the provisions of the . . . decision.33

***
It is possible to draw an analytical distinction between the resolution
of a dispute about the meaning and application of an individual rights
provisionits substance, scope, and reachand the subsequent
development of an appropriate remedy (after an individual rights provision
has been found to have been violated).34 An objective inquiry into the
meaning and application of rights protections is a task suited to the
strengths of the judiciary.35 The third branch occupies an institutional
position (in Massachusetts, at least) that is relatively insulated from
politicsimpartial, distant, and detached from the contestants.36 The
process of adjudication, moreover, provides the court time in which to
consider questions of constitutional meaning and application, and guidance
in the form of arguments from lawyers to which the justices must respond
with a decision justified by resort to reason, as opposed to personal
preference.37 As Alexander Bickel remarked, courts have a capacity for
dealing with matters of principle that legislatures . . . do not possess.38
But this is not to say that legislatures lack the capacity to contribute to
remedial determinationseither about how best to remedy an individual

31. Id. at 969.

32. Id. at 970.
33. Opinion of the Justices to the Senate, 802 N.E.2d 565, 568 (Mass. 2004).
34. See Friedman, supra note 2, at 20.
35. See Owen M. Fiss, Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 9 (1979).
36. Id. at 14.
37. See id. at 12-13 ([B]oth ideological and institutional factors . . . enable and perhaps
even force the judge to be objective . . . to strive for the true meaning of [a] constitutional
value.).
38. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT
THE BAR OF POLITICS 25 (1962).
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2008] OF RIGHTS AND REMEDIES 403

rights violation in a specific instance, or to deter violations of the right in

question in the future.39 Legislators decisions are informed by the practical
problems of their constituents.40 In addition to that experience and learning,
legislators may bring to bear in discussions and debates about policy
alternatives an investigative ability that the judiciary does not possess.41
Unlike judges, legislators may, as Owen Fiss observed, have a special
claim of competency on instrumental judgments, on means-end
rationality.42
As a practical matter, of course, courts account for, and act upon,
remedial considerations when they address individual rights disputes. The
analytical distinction between rights and remedies, after all, is relatively
porous: [r]ights, Daryl Levinson has noted, are often shaped by the
nature of the remedy that will follow if the right is violated.43 Remedial
consequences, in other words, may well influence the content and the
contours of a particular right,44 a point that cannot escape a court faced with
a dispute concerning a rights substance, scope, and reach. And so, courts
assume responsibility for rights and for remedies,45 an exercise of power
that marks the judiciary an easy target for criticism by those individuals
and governmental officials who tend to view skeptically a courts exercise
of its authority to resolve disputes in those instances in which the court is
mostly likely to rule in a countermajoritarian fashion.

***
Now, you cant please everyone all the time. But Justice Sosmans
Bates opinions, together with the remedial portion of Goodridge, suggest a
means by which a court may make an effort to ease the tensions associated
with the judicial imposition of remedies in rights cases. Bates and
Goodridge each involved the explication of a right and a proposed remedy

39. See Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM.
L. REV. 857, 869 n.47 (1999) (defining remedy expansively).
40. See Fiss, supra note 35, at 10 (describing legislators as seeing their function in
terms of registering the actual, occurrent preferences of the peoplewhat they want and
what they believe should be done).
41. See Charles H. Baron, Pleading for Physician-Assisted Suicide in the Courts, 19 W.
NEW ENG. L. REV. 371, 372 (1997).
42. Fiss, supra note 35, at 52.
43. Levinson, supra note 39, at 874.
44. See id. at 884; see also Joseph William Singer, Approaches to Teaching Property:
Starting Property, 46 ST. LOUIS U. L.J. 565, 575 (2002) ([R]ights are defined by the scope
of the remedies the law will grant to right-holders.).
45. See, e.g., Cooper v. Aaron, 358 U.S. 1, 6 (1958) (addressing legislative and
executive disregard for the Courts decision in Brown v. Board of Education, 347 U.S. 483
(1954)).
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for its violationand, importantly, a delay in the imposition of the remedy.

In Bates, it was the right created by the voter-initiated clean elections law
for certain qualified candidates for statewide office to enjoy a degree of
public funding for their campaigns; in Goodridge, it was the right to equal
treatment under the law absent a sufficiently substantive basis for
discriminating between classes of individuals. The court did not grant relief
for the violation of these rights forthwith: Justice Sosman concluded, in
Bates v. Sullivan I, that the legislature should be trusted to fulfill its
constitutional obligations, while the Goodridge court, for its part, stayed
entry of judgment for the plaintiffs for six months.
Only when the legislature in each case failed to act did the proposed
judicial remedies become enforceable. When the legislature did not move
either to repeal or to fund the clean elections law, Justice Sosman, in Bates
v. Sullivan II, approved the levy of execution on Commonwealth property,
the proceeds to be distributed to qualifying clean elections candidates as
judgment creditors. And, when the legislature, after considering the matter
of civil marriage equality for 180 days, failed either to codify the common
law of marriage or propose a constitutionally acceptable alternative regime,
judgment was duly entered for the Goodridge plaintiffs.
The delay in the imposition of remedies in Bates and Goodridge
signaled a judicial commitment to involve the other departments of
government in the remedial process, by providing the legislature an
opportunity to convene and consider the rights violations at issue and how
those violations might be addressed. In each case, the court had other
options available to it. The justices could have denied the possibility of any
judicially-enforceable remedy, leaving the plaintiffs to make the case for
legislative action in the public square. There is precedent for this approach:
in Baker v. State, the Supreme Court of Vermont held that the state
constitution guaranteed to same-sex couples the common benefit,
protection, and security that Vermont law provides opposite-sex married
couples.46 At the same time, the court concluded that the matter of
remedying this equal protection problem should fall to the legislature in the
first instance.47 In the event, the Vermont legislature ultimately provided
for civil unions for same-sex couples.48 Whether in either Bates or

46. 744 A.2d 864, 886 (Vt. 1999).

47. See id. As the author of the Baker majority opinion later noted, the court was careful
to avoid imposing a rapid judicial resolution of the state constitutional claim, recognizing
that such a resolution would be inconsistent with the non-judicial character of state
constitutional authority. Jeffrey L. Amestoy, Foreward: State Constitutional Law Lecture:
Pragmatic ConstitutionalismReflections on State Constitutional Theory and Same-Sex
Marriage Claim, 35 RUTGERS L.J. 1249, 1261 (2004).
48. See VT. STAT. ANN. tit. 15, 1202-1207 (2000).
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Goodridge the Massachusetts legislature on its own would have taken

similar action in the days and months following the release of those
decisions is an open question in light of the legislatures documented
recalcitrance in both instances.
In the alternative, the court in each case could have ordered
immediate relief for the plaintiffs. But an immediate levy of execution on
Commonwealth property,49 or an immediate issuance of marriage licenses
to same-sex couples, might in turn have tested severely the courts
authority to bind government actors through the dispositive resolution of
constitutional disputes, for notwithstanding the soundness of the courts
legal reasoning in Bates and Goodridge, a grant of immediate relief would
have carried with it a possibilityperhaps even likelihoodthat such an
order would have been ignored.50 A failure of the legislature or the
executive to honor fully a remedial order in either case might have put the
courts prestige at risk, and moved the justices to be more hesitant when
addressing the substance, scope, and reach of an individual rights provision
in a future case.51
By postponing the imposition of a remedy, the Bates and Goodridge
courts created temporally-defined spaces for legislative (and public)
discussion of the governments obligations in respect to the clean elections
law and civil marriage. The court in essence created time for democratic
reflection. Within this deliberative spacein the days and weeks following
the ruling in Bates that the legislature had an obligation to fund the clean
elections law, and in the months prior to the entry of judgment for the
plaintiffs in Goodridgethe political branches had the opportunity to
engage the machinery of the political process in the consideration of
appropriate responses to the courts determinationsan opportunity to
foster discussion in the public square and in legislative chambers about
rights and appropriate remedies. In Goodridge, at least, the legislature took
the opportunity to begin just such a discussion.52

49. Justice Sosman correctly noted that the court had no means by which it could order
the legislature to appropriate clean elections funds outright. See Bates II, supra note 7, at 1-
2.
50. This was no idle possibility; following Goodridge, Massachusetts Governor Mitt
Romney tried to do everything within his limited powers to block implementation of
[Goodridge], though for the most part he was unsuccessful in his efforts. Miller, supra
note 10, at 304.
51. Cf. Levinson, supra note 39, at 937 (remarking that the legitimacy of judicial
review, as a sociological matter, depends far more on its practical consequences than on any
political theory developed to defend it).
52. See Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (during 180-
day stay of execution of Goodridge, reviewing a Massachusetts Senate request for an
advisory opinion on a proposed law that would create civil unions for same-sex couples).
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I trust it goes nearly without saying that there is tremendous value in

this kind of debate and discourse, not least because it implicitly
acknowledges that the judiciary in a constitutional democracy is a part of
government and not separate from it: Bates and Goodridge show that courts
need not exercise their authority to resolve constitutional disputes at an
unreachable remove from legislators or private citizens. A period for
deliberation about proposed remedies, moreover, provides a safety valve
for the extremes of public opinion, a means by which critics can air their
views before a decree becomes final. (Whether such deliberative space
works well as a safety valve is an interesting question, but here I am merely
noting the fact of its creation as a potentially salutary jurisprudential
move.) Similarly, the delays in imposing remedies in Bates and Goodridge
served to blunt certain responses by the legislaturesuch as an effort to
change the judicial selection process53which might have disrupted
relations between the judiciary and the other branches going forward.54

***
I dont want to belabor the connections between Justice Sosmans
single-justice orders in Bates v. Sullivan I & II and the remedial portion of
Goodridge, but, as I hope this Essay has demonstrated, the opinions share a
particular conception of the third branchof a judiciary that will seek in its
remedial decision-making to promote public discussion about rights and
proposed remedies. In this light, Justice Sosmans orders in Bates connect
to both the larger jurisprudence of rights and remedies and the ongoing
discourse about the proper role for the judiciary in a constitutional
democracy. The decisions illustrate the prudence of judicial patience when
it comes to remedies, as well as the steps a court should take when the
coordinate departments of government fail to honor constitutional
commands: as Justice Sosman reminded us in Bates v. Sullivan I & II, the
imposition by courts of extraordinary remedies, such as a levy of execution
upon Commonwealth property, need not be an inevitabilitythough it may
be, finally, what justice requires.

53. See Miller, supra note 10, at 310 (discussing effort to impose judicial elections).
54. Mark Miller has noted that relations between the branches suffered in the wake of
Bates and Goodridge, yet there were not serious and substantial attacks on the courts as an
institution. Id. at 313. The possibility of such attacks likely would have increased had the
court acted to immediately enforce judicially-created remedies in each case. Cf. Amestoy,
supra note 47, at 1261 (discussing negative consequences of rapid judicial resolution of
controversial constitutional claims).