All Six Associate Justices Are Proud to be Massachusetts Liberals, but Three Believe Marshall Made Terrible Mistake

            All of the six Associate Justices on the SJC are proud to say they are Massachusetts liberals. When Atty. Pawlick first appeared before them, it was apparent that none were interested in what he was saying and they had not bothered to read his briefs.

            But during the last Oral Argument on the MCM case on May 9, 2003, there was more interest. It became more clear why Margaret Marshall was anxious to get Pawlick out of the courtroom as quickly as possible.

            When Atty. Pawlick sat down after warning Marshall what would happen if she imposed gay marriage later that year, Justice Cordy, who became the most passionate foe of Marshall's plan, raised problems for her. This occurred after Pawlick's Argument with Marshall. The Assistant Attorney General rose in an attempt to "wrap-it-up," but Cordy engaged him in the following conversation:
     PETER SACKS, ASST. ATTORNEY GENERAL FOR THE STATE:  Peter Sacks, Asst. Attorney General for the Secretary.
            We've laid out two reasons in our Brief why the complaint failed to state a claim on which relief can be granted. I believe those grounds are set forth adequately in the Brief and unless the Court has particular questions about those grounds or any other issue in this case, I think we will submit on a Brief.
     JUSTICE CORDY: May I ask one question? This issue was back before the Legislature this year?
     ATTY. SACKS: There has been a Legislative Amendment introduced by a Legislator that would define marriage. It is not precisely the same in text as the amendment that's at issue in this case.
     JUSTICE CORDY: So the amendment that's at issue in this case [the MCM Amendment] is where?
     ATTY. SACKS: Essentially dead, Your Honor.
     JUSTICE CORDY: And that's because?
     ATTY. SACKS: Because the Legislature into which it was introduced, the 2001-2002 Legislature, did not give it at least 25% approval of the joint session.
     JUSTICE CORDY: And the Constitution does require such a vote?
     ATTY. SACKS: Yes.
     JUSTICE CORDY: And it did not occur [because the Legislature refused to vote on it]?
     ATTY. SACKS: Yes.
     JUSTICE CORDY: And there is no remedy? And there is no remedy in Court?
     ATTY. SACKS: There is not a judicial remedy. This Court has previously said that there [are] essentially two remedies. The Governor can call a joint session if the joint session has not performed its duty of taking a vote on a proposed initiative amendment, unless the Governor makes a judgment that such a call would be futile; and then a second remedy which this Court identified in the Limits Case is the political remedy, at the ballot box, for the voters to elect legislators who will do their duty under Article 48 [of the state Constitution].But as the Court said in Limits, where Article 48 identified a remedy or a role for the Governor in enforcing Article 48, but did not identify any such role for the Court, that decision was intentional. The Court therefore did not grant any relief in [the] Limits [case], which was a similar situation.

     
Pawlick Was Anxious to Talk with Justices but Marshall Limited the Time

            Attorney Pawlick was very anxious to tell Justice Cordy it was not true that there was no judicial remedy. That is what the MCM case was all about. There was a judicial remedy. But Pawlick's time had expired and he was therefore unable to say anything to Judge Cordy. But apparently the judges were alerted at that time to some of the machinations that were taking place. It was clear to Pawlick that Robert Cordy was questioning Judge Marshall's plan. Pawlick later wrote for MassNews on July 21:

            "Why Is the SJC Taking so long to Decide about Marriage?"

            "After the Court delayed its decision for a day or two last week, most of us had our first ray of hope - that the judges were not going to intrude upon this basic decision about governing ourselves. But most of us were cautious, believing that the Court might be frantically rewriting their opinion to include the recent U.S. Supreme Court case about sodomy in Texas.
            "But it shouldn't take this long to re-structure a court opinion. The longer the SJC waits, the more it appears there is discord on the bench. This Court likes to do things as a group; they do not like dissent. It appears that they might not have unanimity on this subject. It looks as though they are trying to reach as much unanimity as possible.
            "At the oral argument of the case on March 3, it appeared as though the Court was hell-bent on changing the law. But a closer analysis showed that it was mainly two judges -- Chief Justice Margaret Marshall and the longest-serving, John Greaney, who gave that impression. Those two appropriated 82% of the time that had been allocated to the Assistant Attorney General, Judith Yogman, to present her case against changing the laws of marriage in Massachusetts.
            "Although Margaret Marshall hopes to ride this case to her own personal fame and a seat on the U.S. Supreme Court, it is a dangerous step, particularly if there is a strong dissent. She would be most hesitant if she has only a 4-3 majority. She is a political person. Although she has the New York Times/Boston Globe complex solidly behind her since she married their most powerful columnist, Anthony Lewis, they have their own serious problems with credibility nowadays."
            Although we came very close with our predictions in 2003, Judy Cowin was the stumbling block, the one person we were unable to predict. At this point, it appears as though she must now know she made a personal mistake inasmuch as Pinch Sulzberger is trying to blame her for the whole debacle.