The Supreme Judicial Court built by Governor Charlie Baker will be unlike any high bench before it, crafted with unprecedented diversity and an impressive breadth of experience. But philosophically, it could hew closely to its architect.
Afforded a historic opportunity to name all seven of the court’s justices, Baker has prioritized collegiality and life and legal experiences over Ivy League credentials and hardened ideology in his four-plus years of picking nominees.
The approach, legal observers say, appears to have molded a centrist court — or, to some, a notably unideological one — that has already begun to reflect the moderate Republican’s own preference for pragmatism, collaboration, and, sometimes, caution.
“He doesn’t want activist judges by any means,” said Martin W. Healy, the chief legal counsel of the Massachusetts Bar Association and a member of Baker’s SJC nominating commission. “The governor hasn’t really been that interested in trying to make appointments on any type of a political leaning. He’s looked for judges that were more going to add to what the needs of the courts were.”
Baker’s nominations, the most by a single governor in centuries, could also solidify the reputation of a court that often rules with little dissent and has long eschewed the overt ideological divisions that define the US Supreme Court and its own nomination process.
They, of course, still must formally sit together. Baker’s last nominee, Serge Georges Jr., has yet to be confirmed by the Governor’s Council, while his sixth, Dalila Argaez Wendlandt, has been confirmed but not yet sworn in. Five of Baker’s appointees have sat on the court since at least 2017, though attorneys and former judges said it could take years to provide a clear picture of its approach as a single court.
But beyond his stated preference for legal “rock stars,” one of Baker’s more intriguing descriptions of his selection process, attorneys say, came at a recent news conference. Among his goals, he told reporters, “was to see if we could find people who would basically take the law as it was — and work with it.”
That description, said Daniel Medwed, a Northeastern law professor, evokes a preference for caution — long a description of Baker’s own political instincts.
He’s “an incremental, technocratic governor who doesn’t necessarily want the court to rock the boat but wants hard-working judges who will act in good faith to move the ball forward,” Medwed said. “He’s appointed some really smart and really talented judges. And if we had to guess and forecast, they might be in favor of cautious, incremental reform and careful interpretation.”
Perhaps in a bit of irony, Baker’s picks marked sweeping change in and of themselves. Kimberly S. Budd — confirmed earlier this month as the court’s new chief justice, replacing the late Ralph D. Gants — will be the first Black woman to hold the position. Wendlandt will be the court’s first Latina, and the confirmation of Georges, who is Haitian-American, would ensure the SJC includes three jurists of color for the first time ever.
No governor since Francis W. Sargent, whose final term ended nearly 50 years ago, has tapped six new high-court justices while in office, and it’s unclear if any governor has named seven since John Hancock in the late 18th century.
Beyond their diversity, attorneys praised Baker’s nominations, on the whole, for their balance. Budd and associate justices David A. Lowy, Frank M. Gaziano, and Elspeth B. Cypher — Baker’s first four selections — are all former prosecutors.
But Scott L. Kafker, who followed in 2017, was the state’s top appeals judge and formerly the chief legal counsel for the Massachusetts Port Authority. Wendlandt holds two mechanical engineering degrees and is deeply versed in intellectual property law.
And Georges, who once ran his own solo practice, currently works in Boston Municipal Court’s Dorchester division, where he has handled drug cases and arraignments of those accused of violent crimes. Like Lowy, he would be one of just a handful of SJC justices to ever have sat in a district court, let alone what is one of the state’s busiest.
On the Supreme Judicial Court, where justices largely have their pick of cases to accept, that varied levels of experience can make the current group more comfortable in tackling a range of issues, said former justice Fernande R.V. Duffly, who retired from the SJC in 2016.
“It’s not just how they decide the cases, it’s that they choose to decide them at all,” Duffly said. “This new group has a really broad experience of backgrounds, as well as gender, as well as color, ethnicity. It’s pretty impressive.”
They also buck what attorneys say has been the long-held trend of justices filtering through Ivy League institutions.
Indeed, of Baker’s seven nominees, only Budd attended an Ivy League school; she graduated from Harvard Law in the same class as former president Barack Obama. Gaziano, Cypher, and Georges all graduated from Suffolk Law — a school that Sheriece M. Perry, the former president of the Massachusetts Black Lawyers Association and a Suffolk Law grad, said is “focused on a lot of public government work.”
“When you look at many of the justices from the past, oftentimes you’ll see Ivy League backgrounds and scholars,” Perry said. The current judges and nominees, she said, “are more thoughtful and more creative about how they enter their decisions. The way they have been writing and their analysis and their legal reasoning, it’s come not only from legal scholarship but just life.”
The SJC has in recent years been viewed by attorneys as a centrist — if left-of-center — court, though it’s often escaped predictability. Of Baker’s seven nominees, four are unenrolled voters who have voted in Democratic primaries, records show; Lowy is the only registered Republican, and Cypher and Gaziano are registered Democrats.
In the four years since the first wave of Baker nominees joined, the SJC has regularly issued decisions protecting defendants’ rights, extending the court’s long-held reputation of doing so. That included this year when it said police can no longer frisk drivers during traffic stops based solely on safety concerns or in a trio of September rulings that sought to address what the unanimous court called the “long history of race-based policing.”
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John Pucci, a partner in the Springfield firm Bulkley Richardson and a member of Baker’s first SJC nominating commission, said he was particularly concerned that Lowy, a former assistant district attorney, and Gaziano, a former state and federal prosecutor, would “take the court to the right” after their 2016 appointments.
“But if you look at the decisions they rendered or joined in under Gants, they’re independent people,” Pucci said. “Instead of leaning to the right or to left, they have simply leaned in the direction of justice.”
There has been little evidence of voting blocs among Baker’s appointees, and in cases where justices have offered dissents, they typically aren’t drawn along ideological factions, said Margaret H. Marshall, the former SJC chief justice. “There are no bright lines at all,” she said.
In a nod to Baker’s pursuit of a court that works within the traditional understanding of the law, it’s also shown little appetite to test the constitutional separation of powers.
In March, for example, the court ruled that a Springfield judge had overstepped his authority when he ordered the Hampden County public defenders’ office to shoulder more cases. But it ultimately deferred to the Legislature, which controls the state’s purse strings, to address the shortage of lawyers there.
“That’s taking the law as it is and recognizing there’s only so much the court can do,” said Lawrence Friedman, a New England Law professor. “That is not an ideological court.”