July 21, 2010: Chief Justice Marshall retires

>> Rooney: TONIGHT ON

"GREATER BOSTON":

MARGARET MARSHALL, AUTHOR

OF THE STATE'S LANDMARK

SAME-SEX MARRIAGE RULING,

TELLS US WHY SHE IS

RESIGNING AS THE STATE'S

SUPREME COURT CHIEF

JUSTICE.

PLUS ROLLING BACK THE

STATE'S SALES TAX.

THE BALLOT QUESTION THAT

MAY BE TOO TEMPTING FOR

VOTERS TO REFUSE.

>> Rooney: GOOD EVENING.

STATE SUPREME COURT

JUSTICE MARGARET MARSHALL

ANNOUNCED TODAY THAT SHE

IS RETIRING FROM A JOB SHE

LOVES.

IN A HASTELY-CALLED NEWS

CONFERENCE THIS MORNING,

MARSHALL CITED PERSONAL

REASONS FOR HER DECISION.

>> Reporter: IN AN

ANNOUNCEMENT THAT

SURPRISED EVEN HER

COLLEAGUES, CHIEF JUSTICE

MARGARET MARSHALL TODAY

SAID SHE IS STEPPING DOWN

TO SPEND MORE TIME WITH

HER AILING HUSBAND.

>> TONY AND I ARE BOTH AT

AN AGE WHEN WE HAVE

LEARNED TO VALUE, VALUE

DEEPLY, THE PRECIOUS GIFT

OF TIME.

>> Rooney: MARSHALING

WILL FOREVER BE RECOGNIZED

WITH THE SAME-SEX MARRIAGE

PROPOSAL.

MARSHALL INSISTED IT WAS

JUST ANOTHER CASE.

>> YOU DECIDE THE CASE AND

YOU GO ON.

YOU DECIDE THE CASE AND

YOU GO ON.

>> Rooney: SHE ALSO

WROTE MORE THAN 300

DECISIONS ON ISSUES

RANGING FROM TOBACCO

COMPANY LIABILITY TO

DISABILITY LAW TO FREEDOM

OF RELIGION.

WHAT IS IT YOU THINK THEY

THEYDON'T KNOW ABOUT YOU?

>> THAT THESE ARE NOT

QUICK-SNAP DECISIONS.

THEY ARE CAREFULLY THOUGHT

OUT DECISIONS.

>> Rooney: SHE WAS

UNCOMMONLY ACCESSIBLE FOR

A HIGH RANKING JUSTICE.

INVITING OUR CAMERAS IN

FOR AN INFORMAL LOOK AT

THE FORMAL COURT.

MARSHALL MOVED TO THE

UNITED STATES IN THE LATE

1960s, ATTENDED YALE LAW

SCHOOL, AND BECAME GENERAL

COUNCIL AT HARVARD.

>> THE IDEA THAT I WOULD

BECOME A UNITED STATES

CITIZEN, THAT I WOULD

BECOME A LAWYER.

THAT I WOULD BECOME A

JUDGE, AND SAY NOTHING OF

A CHIEF JUSTICE, COULDN'T

HAVE BEEN IN ANY PLAN THAT

I WOULD HAVE THOUGHT OF

WHEN I WAS GROWING UP.

>> Rooney: MARSHALL SAYS

SHE'LL STEP DOWN BY

OCTOBER TO SPENDMORE TIME

WITH HER 83-YEAR-OLD

HUSBAND, ANTHONY LEWIS,

WHO HAS BEEN DIAGNOSED

WITH PARKINSON'S DISEASE.

AND JOINING ME NOW IS

RETIRING CHIEF JUSTICE

MARGARET MARSHALL.

THANKS SO MUCH FOR COMING.

I KNOW THIS IS A HECK OF A

DAY FOR YOU.

>> THANK YOU FOR HAVING

ME.

>> Rooney: I TALKED TO

YOU MANY, MANY TIMES OVER

THE YEARS.

I KNOW HOW IMPORTANT THIS

JOB IS TO YOU AND HOW MUCH

YOU LOVE THIS.

THIS HAD TO BE A TOUGH

PERSONAL DECISION FOR YOU.

>> IT WAS A TOUGH PERSONAL

DECISION, BUT ONCE I HAD

MADE THE DECISION AND I

WAS COMFORTABLE WITH THE

DECISION, IT IS SO CLEAR

THIS IS A CORRECT DECISION

FOR ME.

I LEAVE, AS YOU KNOW, A

JOB THAT I LOVED.

I FELT SO PRIVILEGED TO BE

IN THIS POSITION.

WE HAVE A GREAT LEGAL

SYSTEM IN MASSACHUSETTS.

WE HAVE A GREAT

COMMONWEALTH, AND THIS IS

A GREAT NATION.

>> Rooney: AND I CAN'T

HELP BUT MAKE SOMEÁÛ

COMPARISONS TO RETIRING

CHIEF JUSTICE SANDRA DAY

O'CONNOR, WHO SAID SHE

WANTED TO BE AT HOME WITH

HER HUSBAND.

AND YOU BASICALLY SAID

THAT'S WHAT I'M GOING TO

DO.

>> EXACTLY.

AND SHE HAS GONE ON TO DO

GREAT THINGS.

AND ONE OF THE MOST

REMARKABLE THINGS SHE HAS

DONE IS PERHAPS ONE OF THE

MOST VISIBLE PERSON,

ESPECIALLY IN THOSE STATES

THAT HAVE ELECTED JUDGES.

SO SHE FASHIONED A WHOLE

OTHER CAREER, PARTICULARLY

AFTER HER HUSBAND'S DEATH,

OF COURSE.

>> Rooney: YOU CONTACTED

GOVERNOR DEVAL PATRICK

TODAY.

DID YOU KNOW HE WAS ON HIS

WAY TO IRAQ?

>> NO, I CERTAINLY DIDN'T.

I WORK VERY CLOSELY WITH

THE GOVERNOR AND HIS

STAFF.

AND I MADE SURE THEY

KNEW --

>> Rooney: DID YOU TALK

TO THE GOVERNOR DIRECTLY,

THOUGH?

>> NO.

HE CALLED ME, AND

UNFORTUNATELY -- BECAUSE

HE IS THE WONDERFUL MAN HE

IS, HE SPOKE TO MY

TERRIFIC ASSISTANT, JENNY,

AND BY THE TIME SHE HANDED

THE PHONE TO ME, THE LINE

WENT DEAD.

>> Rooney: SHE MUST HAVE

KNOWN HE WAS IN IRAQ?

>> HE DIDN'T SAY.

HE IS A WONDERFUL

GOVERNOR.

I'VE ALWAYS WORKED

WONDERFULLY WITH THE LEGAL

COUNCIL.

THAT IS ONE OF THE BEST

JOBS IN THE COMMONWEALTH,

TO BE THE LEGAL COUNCIL TO

THE GOVERNOR.

>> Rooney: THERE IS ALL

OF THIS TALK THAT YOU'RE

STEPPING DOWN IN CASE

ANOTHER PARTY COMES IN --

>> OH, PLEASE.

>> Rooney: RIGHT.

YOU WERE APPOINTED BY

GOVERNOR GALLUCCI.

>> IT NEVER ENTERED MY

HEAD.

I WAS A REGISTERED

REPUBLICAN LONG BEFORE I

MET MY HUSBAND AND LONG

BEFORE I BECAME A JUDGE.

IF YOU BECOME A JUSTICE,

YOU LEARN TO PUT POLITICS

ASIDE.

IT IS A DIFFICULT THING

FOR PEOPLE TO UNDERSTAND,

BUT YOU HAVE TO DO THAT.

I REMEMBER BEING AT SOCIAL

GATHERINGS DURING

PRESIDENTIAL ELECTIONS,

AND PEOPLE WOULD SAY, DID

YOU WANT PRESIDENT OBAMA

OB SECRETARY OF STATE

HILLARY CLINTON, AND I

JUST WOULDN'T SAY.

>> Rooney: IT IS A

LITTLE LIKE BEING A

JOURNALIST.

>> YOU HAVE TO DO IT.

WE'RE VERY FORTUNATE IN

MASSACHUSETTS, IF YOU

THINK OF ALMOST ANY OF THE

DECISIONS, IT IS VERY HARD

TO PLACE AND SEE WHICH

JUSTICES CAME FROM WHICH

GOVERNORS, WHETHER THEY

WERE REPUBLICANS OR

DEMOCRATS.

I THINK IT WAS GOVERNOR

SARGEANT, THE REPUBLICAN

GOVERNOR, WHO FIRST

ESTABLISHED THE JUDICIAL

NOMINATING COMMITTEE, AND

ANYONE GOVERNOR, SINCE

GOVERNOR SARGEANT, WHICH

IS NOW DECADES, HAS HAD A

JUDICIAL NOMINATING

COUNCIL.

AND I THINK PEOPLE FEEL

VERY OPEN ABOUT APPLYING.

I HOPE THEY DO.

CERTAINLY ON OUR COURT,

WHICH IS A VERY MUCH

COLLEGIATEAL COURT, AS WE

GO AROUND THE TABLE, IF

THEY'RE DISCRIMINATION

BUSINESS OR EMPLOYMENT

ISSUES -- IT'S VERY HARD

FOR ME TO KNOW BEFOREHAND

WHICH WAY THEY'RE GOING TO

VOTE.

>> Rooney: YOU SAID THIS

AND YOU'LL PROBABLY SAY

THE SAME THING NOW, IT WAS

JUST ANOTHER CASE TO YOU.

YOU HEARD THEIR CASES, AND

THE JUSTICES LISTENED, AND

SOME OF THE PEOPLE LEFT

THE COURTROOM, AND THE

NEXT CASE WAS UP.

BUT NOW IN HINDSIGHT --

'02 OR '03, I GUESS IT

WAS -- COULD YOU LOOK AT

IT AND FEEL COMFORTABLE

SAYING YOU ARE PART OF

THAT DECISION?

IT WAS THE RIGHT THING TO

DO?

CAN YOU TALK ABOUT IT IN

THOSE TERMS?

>> I HOPE THAT -- AND I

REALLY MEAN THIS IN THE

BEST SENSE OF THE WORD --

I HOPE ALL OF THE

DECISIONS THAT YOU LOOK AT

AND YOU THINK OVER TIME

THAT WAS THE RIGHT

DECISION.

I'M NOT ELEGANT, SO IT

DOESN'T SURPRISE ME FROM

TIME TO TIME THAT I GET IT

WRONG.

I EMPATHIZE WITH THE TRIAL

JUDGES WHO WAIT.

IT IS ALWAYS SAID IF THE

APPEALS CONFIRMS YOU, YOU,

THE PROUD JUDGE, MUST HAVE

DONE SOMETHING WRONG.

AND I TRY NOT TO BE CUTE

ABOUT IT BECAUSE, OF

COURSE, IT IS A VERY

WELL-KNOWN OPINION

NATIONALLY AND

INTERNATIONALLY.

BUT WHEN I LOOKED THROUGH

MY OPINIONS AND REALIZED

HOW MANY I HAD WRITTEN,

WHICH, OF COURSE, I HADN'T

REALIZED BEFORE I ACTUALLY

PULLED IT UP ON THE -- ON

OUR DATA BASES, THERE WERE

SO MANY THAT WERE REALLY

DIFFICULT, VERY DIFFICULT,

DECISIONS.

>> Rooney: BUT YOU'RE

BEING MODEST.

THIS ONE -- IT HAS CHANGED

THE SOCIAL FABRIC OF

AMERICA AND THE REST OF

THE WORLD.

TWO WEEKS AGO ARGENTINA

BLESSED SAME-SEX MARRIAGE.

I MEAN, I FEEL PROUD JUST

BEING A CITIZEN OF

MASSACHUSETTS FOR THAT

DECISION.

>> I WANT TO SAY THIS: I

HAVE ALWAYS SAID, IF YOU

THINK ABOUT MANY OF THE

GREAT CASES, YOU THINK

ABOUT TWO PEOPLE.

YOU THINK ABOUT THE

LITIGANTS, AND YOU THINK

ABOUT THEIR LAWYERS.

BROWN VERSUS BOARD OF

EDUCATION.

WHAT'S THE FIRST NAME THAT

COMES TO YOUR MIND.

IT'S THURGOOD MARSHALL WHO

PLANNED THE STRATEGY.

GREAT LAWYERS TEACH

APPELLATE JUDGES.

WE HAD TO BE TAUGHT BY THE

LAWYERS.

LITIGANTS -- LITIGANTS

RISK A LOT.

THEY ARE PEOPLE, FOR

EXAMPLE, WHO CHALLENGE

EMPLOYMENT CONDITIONS OR

CHALLENGE REGULATORY

CONDITIONS.

AND THAT TAKES A LOT OF

COURAGE.

AND I'M VERY RESPECTFUL OF

PEOPLE WHO DECIDE TO TEST

THE SYSTEM, AND ALSO THE

LAWYERS WHO REPRESENT

THEM.

I HAVE ENORMOUS RESPECT

FOR THE LAWYERS WHO HELP

US UNDERSTAND THE LAW.

IN OTHER WORDS, IF ONLY

WHEN THE CASE COMES TO

YOU, AND I'VE OFTEN SAID

THAT THE BEST ARGUMENTS

THAT A LAWYER CAN MAKE IS,

JUDGE, I'M NOT ASKING YOU

TO MAKE A GIANT LEAP

FORWARD.

I'M JUST ASKING YOU TO

TAKE A BABY STEP.

AND SOMETIMES THE BABY

STEP TURNS OUT TO BE --

>> Rooney: I NOTICE HOW

YOU CHANGED THE SUBJECT.

I LEARNED SO MUCH WHEN WE

DID THE HALF HOUR WITH YOU

A FEW YEARS AGO.

ONE OF THEM I GUESS I

SHOULD HAVE KNOWN, THE

STATE SUPREME COURT

JUDICIAL COURT REVIEWS

EVERY SINGLE MURDER CASE,

MURDER IN THE FIRST

DEGREE.

IT WAS THIS CASE JUST LAST

WEEK THAT YOU REVERSED,

WHICH WAS VERY CONTINUE

VERBAL.

AND MOST MURDER CASES ARE

PRETTY PROFOUND.

IT WAS AN INTERESTING ONE

IN SOUTH HADLEY -- IS THAT

RIGHT?

WHERE THE 34-YEAR-OLD

WOMAN KILLED HER HUSBAND,

AND NOW IT WAS REVERSED ON

THE FACT SHE HAD SOME

MENTAL DISORDERS.

BUT THERE DISSENT IN THAT.

IT WASN'T A CUT AND DRY

CASE.

>> YOU WOULD THINK HUMAN

BEINGS HAVE BEEN MURDERING

OTHER HUMAN BEINGS RIGHT

FROM THE FIRST OF TIME.

YOU WOULD THINK BY NOW THE

LAW IS SETTLED, AND, OF

COURSE, IT IS NOT.

AND THE GREAT CHECK ARISES

OUT OF A CASE WHERE PEOPLE

FELT THOSE TWO MEN WERE

FOUND GUILTY AND WERE

EXECUTED BECAUSE OF THEIR

ITALIAN ORIGIN, AS WELL AS

THE COURSE OF THEIR

POLITICAL VIEWS.

AND HISTORY IS DIVIDED ON

THAT.

WHAT I LOVE ABOUT THAT

CASE AS A TEACHING MOMENT

IS THAT IT WAS THE

LEGISLATURE -- THE COURT

KEPT SAYING TO THE

LAWYERS, YOU HAVEN'T SHOWN

TO ME WHAT THE LEGAL ERROR

IS.

AND IT WAS ESSENTIALLY THE

LEGISLATURE SAYING, FOR

HEAVENS SAKE, CAN YOU JUST

LOOK AND SEE IF JUSTICE

WAS DONE.

SO IN ESSENCE, THERE WAS A

VIEW OF WHAT THE SUPREME

COURT DOES OF MURDER IN

THE FIRST DEGREE

CONVICTION, WE HAVE TO

LOOK AT THE WHOLE CASE.

TYPICALLY IN AN APPELLATE

CASE, THE LAWYER HAS TO

SAY THIS IS WHERE WE THINK

THE TRIAL JUDGE WENT

WRONG.

THE TRIAL JUDGE SHOULD NOT

HAVE PERMITTED THAT

EVIDENCE.

WHATEVER IT IS.

IN MURDER ONE, WE HAVE

LOOK AT EVERYTHING FROM

THE INDICTMENT ALL THE WAY

THROUGH.

IF WE SEE THAT THERE IS AN

ERROR, WE CAN EITHER

REDUCE THE SANCTIONS,

FIRST DEGREE TO SECOND

DEGREE.

WE CAN ORDER A NEW TRIAL.

WE CAN DO A VARIETY OF

THINGS.

>> Rooney: AND MURDER IS

THE ONLY ONE THAT SORT OF

FITS THAT CATEGORY.

BECAUSE ALL OF THE OTHER

CASES THAT YOU HEAR ARE

VERY NUANCED.

IT HAS TO HAVE SOMETHING

TO DO WITH -- HOW DO YOU

DESCRIBE IT -- WHAT IS THE

LITMUS TEST FOR A CASE

THAT MAKES IT TO THE NEXT

STEP.

>> OH, IT --

>> Rooney: IT HAS TO

CHANGE THE NATURE OF THE

LAW.

>> IT HAS TO HAVE SERIOUS

RAMIFICATIONS FOR

MASSACHUSETTS.

>> Rooney: SO NOT ANY

CASE CAN MAKE IT.

>> NO.

THERE ARE THOUSANDS AND

THOUSANDS --

>> WE HAVE AN INTERMEDIATE

APPEALS COURT.

IN OUR CONSTITUTION, YOU

HAVE AN AUTOMATIC RIGHT TO

ONE APPEAL.

AND THERE ARE THOUSANDS

AND THOUSANDS OF CASES.

AND THEN YOU HAVE TO ASK

FOR A FURTHER APPELLATE

REVIEW.

AND THAT IS DISCRETIONARY

IN THE COURT.

WE LOOK AT A VARIETY OF

TESTS, IS IT NEW AND NOVEL

AND WILL IT HAVE BROADER

RAMIFICATIONS.

IT IS INTERESTING LOOK ARE

BACK.

OF ALL OF THE CASES THAT

HAVE COME BEFORE ME, THE

ONE THING, NOT THE WUNG

THING, BUT -- NOT THE ONE

THING, BUT ONE OF THE

THINGS THAT STANDS OUT IS

FOR PARTICULARLY PRE-MED

DATED MURDER --

PREMEDITATED MURDER.

WOMEN WHO MURDER, MEN WHO

MURDER, RICH PEOPLE WHO

MURDER, POOR PEOPLE WHO

MURDER.

THE HATE IS QUITE GENERAL.

>> Rooney: THE ENTWISTLE

CASE --

>> I THINK THAT'S WHY WE

ALL LOVED PERRY MASON.

THE WHOLE IDEA WAS THIS

PERSON WHO SEEMED LIKE THE

OBVIOUS PERSON, AND IT IS

ACTUALLY THE PERSON YOU

THINK OF THAT IS LEAST

LIKELY.

WE ARE FORTUNATE IN

MASSACHUSETTS SOMEWHERE, WE HAVE A

VERY GOOD PUBLIC DEFENDER

SYSTEM AND PROSECUTION

SYSTEM.

IT HAS SOME PROBLEMS UP

AND DOWN, BUT BASICALLY AT

THAT END, THE SYSTEM WORKS

VERY WELL INDEED.

>> Rooney: NOW, AS FOR

YOUR REPLACEMENT.

THAT WILL BE THE

GOVERNOR'S CHOICE.

>> THE GOVERNOR'S.

>> Rooney: WILL IT BE

CHOSEN FROM THE CURRENT

COURT OR COULD HE GO

OUTSIDE?

>> HE COULD GO COMPLETELY

OUTSIDE.

HE CAN CHOSE SOMEBODY WHO

IS A SITTING ASSOCIATE

JUSTICE.

HE COULD GO TO SOMEBODY

WHO IS NOT EVEN A JUDGE.

HE COULD GO TO SOMEBODY

WHO IS A JUDGE ON THE

APPEALS COURT.

HE COULD GO TO A JUDGE ON IN

THE CRIMINAL COURT.

THE PRESIDENT HAS THE

RIGHT TO SELECT WHOM HE

LIKES.

GOVERNOR PATRICK CAN

SELECT WHOM HE LIKES.

HE, LIKE THE PRIOR

GOVERNORS I'VE MENTIONED,

HAVE ESTABLISHED BY

EXECUTIVE ORDER A VERY

GOOD NOMINATION COUNCIL.

I HAVEN'T HEARD FROM THE

GOVERNOR, BUT IT WOULDN'T

SURPRISE ME IF HE WENT

THROUGH A JUDICIAL

NOMINATING PROCESS.

HE MIGHT NOT.

IN MY CASE, WITH GOVERNOR

SALUCCI, HE ESTABLISHED A

SPECIAL COMMITTEE TO FILL

BOTH THE CHIEF JUSTICE'S

POSITION AND THE VACANCY

ON THE COURT.

SO PEOPLE HAVE DONE IT IN

DIFFERENT WAYS.

BUT THERE ARE CERTAINLY

PEOPLE --

>> Rooney: DO YOU SLIP

HIM ANY NAMES?

>> NO.

HE DOESN'T NEED MY HELP,

BELIEVE ME.

I'M SURE HE -- HE HAS MADE

WONDERFUL JUDICIAL

APPOINTMENTS, AS HAVE ALL

OF THE JUSTICES.

>> Rooney: CHIEF JUSTICE

MARGARET MARSHALL.

THANK YOU SO MUCH.

>> IT IS A GREAT PLEASURE

TO BE HERE.

THANK YOU.

>> Rooney: WHEN WE

CONTINUE, CUTTING THE

STATE'S SALES TAX IN HALF.

WILL VOTERS GO FOR IT?