Harvard Law School Assistant Professor Jed Shugerman’s book, “The People’s Courts,” is already being put to good use. Margaret Marshall, the recently retired chief justice of the Massachusetts Supreme Judicial Court, now a senior research fellow and lecturer at HLS, used it this spring to introduce her students to the history of judicial elections in her seminar on judicial independence.
Electing a judge is very different from electing a legislator or executive, because judges must be impartial, notes Marshall, who is author of the majority opinion in the 2004 decision that made Massachusetts the first state to recognize the marriages of same-sex couples. Politicians make campaign promises all the time, and the people can vote them out if they don’t deliver. “The challenge when it comes to judicial elections,” Marshall says, “is that judging in the postelection role is a commitment to the law. You cannot say, ‘If elected, I will always impose a death penalty in a case where the jury can conclude that there was a murder,’ or ‘I will never allow a class action.’ That’s inconsistent with your role as a judge. So, there’s a real tension there. Where that line is drawn on what judges can say during an election campaign, what the confinement can be, is a very difficult issue.” Students in Marshall’s course looked at what the law says about campaign speech for state judges, including campaign financing and issues related to Citizens United.
Marshall never faced a judicial election herself (judges in Massachusetts are appointed for a single term, lasting until they turn 70), but her interest in the topic comes from her deep concern for justice. “From the people’s point of view, justice in America is delivered first and foremost through the state courts,” she says. Factors ranging from the decimation of state court budgets to the politicization of state judicial elections by unprecedented sums of special interest funding to the loosening of ethical strictures on judicial campaign speech are, she says, “putting that delivery of justice at risk.” Shugerman’s book, she says, “is a brilliant description that we all need to know about to understand what led us to this particular place. This book could not be more timely.”