For its final High Table luncheon of the semester, The Fletcher School’s LL.M. program welcomed the Honorable Robert J. Cordy, Associate Justice of the Supreme Judicial Court of Massachusetts (SJC), as speaker.
The role of state courts in forming jurisprudence is not commonly appreciated, asserted Justice Cordy. The American common law foundation encourages courts to look to one another for guidance when grappling with cases of first impression, or where the law is unsettled. For example, when the SJC hears a case without obvious precedent, the Court will inquire as to what other states have ruled on the same, or similar, issue. In so doing, the SJC is not delegating authority to other states, but looks to other courts to examine their reasoning and to ascertain if previous court decisions can provide guidance.
This examination of precedent outside of the jurisdiction doesn’t stop at state courts; the SJC considers foreign rulings as well. State constitutions tend to offer more expansive, or more clearly-defined, protections than does the United States Constitution, including such positive rights as the right to education. Many other countries’ constitutions provide for positive rights as well, so their decisions may provide insight to justices here.
As Justice Cordy emphasized, state courts are in a unique position to pioneer legal reform. Examples abound where state courts were ahead of their time. In 1783, the SJC ruled that slavery was inconsistent with the Commonwealth’s constitution. In the 1840s, the court decided that labor unions were appropriate and legal—long before the rest of the country embraced the idea. More recently in the 1950s, the California Supreme Court struck down a statute prohibiting interracial marriages; the US Supreme Court was not to address this issue until twenty years later.
Justice Cordy sees an important connection between state courts and international law. “State courts will continue to play an interesting role in developing and receiving international norms into our jurisprudence. We encourage it, we’re not afraid of it.” He cited an example where his court was deciding a case about human embryos. A couple divorced and the issue of ownership of their frozen embryos was litigated, including whether the embryos could legally be brought to term and by whom. The SJC found little precedent on this issue with the exception of a similar case decided in Israel, which shaped the Court’s ruling. In 2007, the same question arose in a case in the United Kingdom. There, the court cited the decision of the Israeli court as well as the SJC ruling, a prime example of what Justice Cordy pointed to as the “symbiotic relationship” between courts.
When Justice Cordy opened the floor up to questions, Professor Jeswald Salacuse was the first to speak. He asked how the Massachusetts Supreme Court approached decisions that could be politically unpopular or have strong emotional value for the public. Specifically, Professor Salacuse asked how the Court decided the landmark case allowing same-sex marriage. The Justice joked that unlike legislators who can bury controversial issues in committee, the SJC does not have that luxury: “There was an important case and we had to decide it.” While acknowledging the existence of considerable public pressure, he stressed that “it didn’t affect the court’s [ruling] one bit.” The majority decision was based on the role of the court versus the role of the legislature. As one of the dissenting justices, he felt that the issue was one to be decided by elected officials, not by the courts.
Justice Cordy has traveled to many countries to train other justices and to learn from them. This experience has given him a profound appreciation for the US judicial system and the freedom it affords him in making decisions like the one above. Not only does he feel immune from public pressure, he also feels free from political influence. As for the role of state courts going forward, he emphasized that we all have much to learn about enforcing positive rights. He also wants to see how countries outside the common law system address human rights, as countries can embrace lofty principles but it is a far greater challenge to implement them in a practical, workable manner. Justice Cordy looks forward to learning from the experiment.