Shipping Up to Boston: The Voting of the Massachusetts Supreme Judicial Court in Nonunanimous Criminal Cases from 2001-2008

By Blackwell, Kevin | Albany Law Review, Summer 2009 | Go to article overview

Shipping Up to Boston: The Voting of the Massachusetts Supreme Judicial Court in Nonunanimous Criminal Cases from 2001-2008


Blackwell, Kevin, Albany Law Review


I. INTRODUCTION

Republican appointed justices became a super majority on the Massachusetts Supreme Judicial Court in 2001. (1) During his four years in office, Governor Paul Cellucci (R) was presented with the extraordinary opportunity to completely reshape the highest tribunal of Massachusetts. (2) In just two years, Governor Cellucci appointed four of the seven justices of the Supreme Judicial Court. (3) While not every one of Governor Cellucci's appointees was a registered Republican, all of his nominees shared a conservative judicial ideology that the governor favored. (4) In the three years prior to Cellucci's term as the Governor of Massachusetts, Governor William F. Weld (R) appointed three justices to the Massachusetts Supreme Judicial Court. (5) Two of those justices remained on the court after Governor Cellucci's appointments, creating a Republican appointed majority of six on the seven-member court. (6) In 1996, Democratic governors had appointed five out of the seven justices on the court. (7) In just five years, the Massachusetts Supreme Judicial Court had apparently gone from one ideological extreme to the other.

This study is intended to demonstrate trends in how the Massachusetts Supreme Judicial Court decided non-unanimous or divided criminal cases over an eight-year period. This study aims to answer two questions about how those criminal appeals were decided. First, how frequently did the court and its justices side with the defendant in those cases? Second, how frequently did individual justices agree with their colleagues in those cases? The super majority existed during the first seven years of this study. In the last year of the study, the composition of the court changed slightly with an appointment of a justice by a Democratic governor. (8) Accordingly, this change in membership will also be explored to determine what impact this appointment had on the way that the court decides criminal appeals when the court is divided.

The study will be organized as follows: Part II provides some background information on the Massachusetts Supreme Judicial Court, including general information regarding composition, tenure, and the appointment process. Additionally, a brief history of the membership of the court is provided. Part III describes the methodology utilized in this study. Specifically, it explains the reasoning behind examining only non-unanimous cases, how those cases were selected, and how the data from those cases was collected and analyzed. Part IV discusses how frequently the justices and court sided with the defendant in divided criminal cases. Part V discusses how successfully individual justices are in getting their colleagues to agree with their written opinions in these cases. Part VI discusses some recent developments and offers concluding remarks on the effect of the most recent appointment on divided criminal cases. Appendix A provides the complete findings from this study. Appendix B contains the observations and data collected from individual cases.

II. THE MASSACHUSETTS SUPREME JUDICIAL COURT

A. Generally

The Massachusetts Supreme Judicial Court "consist[s] of six associate justices and one chief justice." (9) Only four justices need be present for a quorum necessary to decide all matters to be heard by the court. (10) The justices of the court "are appointed by the Governor [to] life terms," (11) but are subject to mandatory retirement upon reaching the age of seventy. (12) The Governor's Council must confirm appointees in order for them to take office. (13) The Governor's Council consists of eight members and the Lieutenant Governor. (14) The eight members are elected to two-year terms from special districts. (15) The legislature has no formal role in the judicial selection process, and has virtually no opportunity to influence the decisions of that process. (16) Outside rare newspaper articles, the selection process receives little attention in the legislature or the media. …

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