Supreme Judicial Court Chief Justice Margaret Marshall will end a distinguished and precedent-setting career in three months when she retires from the court.
Marshall, appointed to the court by Gov. William Weld in 1996 and made chief justice by Gov. Paul Cellucci in 1999, is the first female to serve in that role.
Her reason for retiring — to spend more time with her husband, Pulitzer Prize-winning journalist Anthony Lewis, who has Parkinson's disease — deserves both sympathy and praise. She sets a worthy example of placing devotion to her spouse over career in what she calls, "the final seasons" of their lives.
Her decisions — she authored more than 300, but by far the most famous was Goodridge v. Department of Public Health, which legalized gay marriage in Massachusetts — will have long-lasting impact here in the commonwealth and beyond.
But those who respect the critical balance of power among the legislative, executive and judicial branches should hope that her view of the judiciary will not long endure.
By her own words, Marshall believes judges should not just interpret the law, but "shape" it.
"To one who loves the law as I do, there is no greater gift than to devote one's life to shaping the law," Marshall said at a press conference last Wednesday announcing her retirement.
She may consider it a gift to her personally, but acting upon such a view is not a gift to society or to the stability of the democratic system. Shaping the law is exactly what judges are not supposed to do. The authority to change or make laws is given to the legislative branch.
Indeed, Marshall's statement confirms the precise fears of Thomas Jefferson, one of the nation's founding fathers, principal author of the Declaration of Independence, and considered one of the nation's greatest presidents.
Jefferson warned that the federal Constitution would become "a mere thing of wax," in the hands of an overreaching judiciary, "which they may twist and shape into any form they please."
This, Jefferson knew, could be lethal to a system where judges, once they are appointed, are immune from both public and political pressure. The reason for that is so the courts can interpret the law without fear of retribution, not so that they, an unelected body, can "shape" the law as they choose.
Gov. Deval Patrick has said he will look for a judge with an understanding of common people in choosing a successor to Marshall. That is not encouraging. He should no more choose a judge with an emphasis on understanding common people than he should choose one with a strong understanding of society's elites.
The emphasis should rather be on understanding and preserving the law. It's unfortunate this was not Marshall's highest priority.
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