In recent days, how many of us have said or heard something like this: “Even if President Trump goes after basic civil rights and liberties, things won’t get too bad here. After all, this is Massachusetts.”
Why is it that so many Bay Staters feel buffeted from the political winds that brought Brexit across the pond and Donald Trump to the Oval Office? Perhaps it’s our legacy as a leader in the movement toward universal health care and the right to same-sex marriage. In many respects, though, a glance at the Commonwealth’s executive and legislative branches belies our reputation for progressive policies:
* We’ve had a slew of Republican governors over the past thirty years, including our current one and a man who nearly became President Trump’s choice for Secretary of State;
* Massachusetts is one of a handful of states that allows for solitary confinement for up to 10 years for a single disciplinary offense by a prisoner. The legislature has repeatedly rejected overtures to modify the solitary confinement practices implemented by the Department of Corrections;
* Massachusetts was the second-to-last state in the nation to enact a law to grant inmates post-conviction access to DNA testing of biological evidence where it could prove innocence. Only Oklahoma took longer to embrace this reform;
* Massachusetts has a pervasive “mandatory minimum” sentencing regime that guarantees harsh punishments for a number of crimes, including some non-violent ones, and that enjoys support from a corps of prominent district attorneys; and,
* At this very moment, the legislature appears on the cusp of curtailing the marijuana legalization measure endorsed by voters last fall.
Now, these examples are not necessarily representative of state policy as a whole. I admit it—I’m guilty of “selection bias,” choosing anecdotes that suit my claim and ignoring other, and possibly more widespread, signs of progressivism by our government. Yet my point is not to debate whether Massachusetts is progressive either as a normative matter or in comparison to other jurisdictions. Rather, it’s to explore why we feel it is despite some arguably strong indications to the contrary.
I think the answer lies with our courts. The highest court in the Commonwealth, the Supreme Judicial Court of Massachusetts, has a history of progressive decision-making, including its groundbreaking 2004 opinion recognizing same-sex marriage. The SJC has long understood that the federal constitution provides a “floor” for protecting civil rights and liberties and that the state may fashion a much higher “ceiling” under state constitutional law. That is, a state supreme court may generally afford more—but not less—protection to individuals than that extended by the United States Supreme Court. Some state supreme courts interpret their state laws and constitutions at the same level as the U.S. Supreme Court’s floor. Others, like the SJC, aim higher.
Take the SJC’s recent jurisprudence on the Fourth Amendment, the constitutional provision that protects people from unreasonable searches and seizures by law enforcement. Last fall, in Commonwealth v. Warren, the SJC proclaimed that an African-American male’s decision to flee from the police cannot be taken into consideration in determining whether there was reasonable suspicion to justify a stop because that choice may simply stem from a desire to avoid the “recurring indignity” of racial profiling rather than consciousness of guilt. Just this month, the SJC reinforced the gist of Warren in a powerful opinion safeguarding the rights of a person stopped in Cambridge. These decisions seem far more protective of individual rights than the U.S. Supreme Court’s Fourth Amendment precedent would dictate.
The SJC consists of seven justices, each of whom must be nominated by the Governor and receive confirmation through a process steered by the elected, eight-member Governor’s Council. Upon confirmation, a justice may serve until reaching the age of 70. The fact that SJC justices are appointed largely insulates their decisions from the vagaries of political considerations—considerations that inevitably influence governors, chief prosecutors, and legislators, all of whom must be elected to obtain, and re-elected to maintain, their positions.
Governor Baker installed three new justices last year. With two other sitting justices scheduled to step down in 2017, the Governor has the chance to appoint five justices in a two-year period and effectively give the court a makeover. If you are concerned about protecting civil rights and liberties in the age of Trump, please pay attention to the nomination process as it unfolds and help ensure that Governor Baker appoints two well-qualified justices to the SJC: jurists likely to continue in the Court’s rich tradition of protecting the individual against the potentially overwhelming power of the government.