Professional Documents
Culture Documents
ESSAY
LAWRENCE FRIEDMAN *
397
FRIIEDMAN. ROUND 6 5/9/2008 4:37:08 PM
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].
FRIEDMAN. ROUND 6 5/9/2008 4:37:08 PM
& 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
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,
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.
FRIIEDMAN. ROUND 6 5/9/2008 4:37:08 PM
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
***
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)).
FRIIEDMAN. ROUND 6 5/9/2008 4:37:08 PM
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).
FRIIEDMAN. ROUND 6 5/9/2008 4:37:08 PM
***
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).