After writing a stinging dissent in a landmark case, Massachusetts Supreme Court Justice Martha Sosman '72 found herself being judged in the court of public opinion.
But there's more to her than meets the eye.
By John Wolfson
Photographs by Kathleen Dooher
Last March, the people claimed the streets of Boston. By the thousands they came, cramming the Beacon Street sidewalks in front of the Massachusetts State House, erecting a concert stage in historic Boston Common, waving signs, blowing whistles; one contingent chanted biblical passages; another demanded equal rights. Inside the State House, lawmakers at a special constitutional convention were wrangling with the emerging reality that soon, very soon, Massachusetts was going to become the first state in the nation to legalize gay marriage.
Four months earlier, the Massachusetts Supreme Judicial Court had ruled in Goodrich v. Department of Public Health that same-sex couples were entitled to all the rights and benefits of matrimony. The court gave the legislature 180 days to craft a plan to comply with the decision, which resulted in the constitutional convention. All the major newspapers sent reporters. Broadcast networks beamed the images around the world. Cable-network talking heads roared at nighttime
audiences. It was either the dawning of a new era or the end of civilization. History, everyone sensed, was being made.
Even the Massachusetts Supreme Judicial Court—an institution that has long favored consensus and precedent—was not immune to the conflicting emotions and tense atmosphere. Though the SJC had announced its ruling in the sort of soaring, majestic language that always seems to accompany these once-in-a-generation rulings—"The Massachusetts Constitution affirms the dignity and equality of all individuals; it forbids the creation of second-class citizens," Chief Justice Margaret Marshall wrote—the stirring words did little to disguise the fact that the decision had been a razor-thin 4–3 majority. And no member of the minority opinion dissented with more passion, or more volume, than Justice Martha Sosman '72.
To Sosman, the court had overstepped its bounds, discerning a right that could not be found in the Massachusetts constitution; to her, the majority's opinion boiled down to a belief that gays should be allowed to marry simply because they were already allowed to adopt children. But plenty of straight couples also raise kids outside of marriage, she reasoned. The state was not required to "accord the full benefits of marital status on every household raising children," she wrote in dissent. Later, lawmakers came back to the court asking whether Vermont-style civil unions would suffice, rather than full marriage. By the same slim margin, the court decreed that marriage, and marriage alone, would satisfy its requirements. Again, Sosman disagreed. What was wrong with civil unions? They offered the same benefits as marriage, she wrote in still another dissent, using a dash of Shakespeare to make her point: "That which we call a rose, by any other name would smell as sweet." Then things got personal. Sosman's argument "so clearly misses the point," Marshall wrote, "that further discussion appears to be useless." Sosman answered by labeling the majority "activist." Their ruling, she charged, "merely repeats the impassioned rhetoric" of gay-marriage proponents. All in all, the exchange was astonishing. "There's an extraordinary level of invective that isn't characteristic of this court," Boston College law professor R. Michael Cassidy told the New York Times.
It's certainly true that Sosman—a former Planned Parenthood board member and cofounder of an all-women law firm—knew that in aligning herself with the "no" faction on the gay-marriage question, she was stepping onto grounds mushy with the
potential to be interpreted as plain old bigotry. And she surely knew that her opposition threatened, in this most progressive of states, to affect everything from her social circle to her judicial legacy. (Though it's difficult to imagine she could have foreseen that it would lead to Fox commentator Bill O'Reilly speculating about her sexuality.) It is also true, as it happens, that she came down against gay marriage anyway. To her, there just wasn't anything in the Massachusetts constitution to support it.
Martha Sosman is short—she's about five-feet, three-inches tall—and has piercing blue eyes and closely cropped salt-and-pepper hair. As one would expect, though, her standing as an officer of the court lends her a somewhat imposing presence that belies her actual size. From the bench, she can certainly cast a stern countenance, but when I first met the 54-year-old judge on a steamy day in late July, I was caught off guard. She was, well, surprisingly cheery.
On that day, Sosman had just left a farewell party for the year's batch of law clerks, and, right on time for our appointment, she strode up to me in the marble-lined lobby of the Massachusetts Supreme Judicial Court. After giving my hand a firm shake, she led me into her spacious office, where we spent the next hour and a half discussing her theories on constitutional law, the career path she'd followed to the state's highest court, and her days at Middlebury.
"People see some things on the résumé—they see the Planned Parenthood, the all-women firm, and they immediately make assumptions about where I stand on a particular issue," she said. "We do have this tendency to pigeon-hole people based on our stereotypical assumptions." She was not, she stressed, talking specifically about gay marriage. She had made it clear, before agreeing to the interview, that she couldn't comment on that ruling—her written dissent would have to speak for itself. Still, I hoped that a few unobtrusive questions in this first meeting might encourage her to open up next time. And she was certainly engaging that afternoon. She spoke with enthusiasm and laughed easily, a piercing, high-pitched hoot that caused her eyes to scrunch up and nearly close. While making a more serious point, she would clasp her hands and look down at her desk.
"As a judge, you are supposed to be able to look at things in a very dispassionate way," she said. "What does the statute actually say? What does the constitution actually say? What do our prior cases say? It's certainly one of the regrettable things that you see going on now on the federal level. Judicial selection is driven by all of these litmus tests. It should be about, 'Is this person a person who can think clearly, without getting swept up in the passions of the moment about a particular issue?'"
As judges, we have to employ considerable restraint in interpreting a constitution," she said when pressed about her own judicial philosophy. "Some people talk about so-called 'judicial restraint,' which I think is really code for intellectual honesty. The law does have to have an internal consistency. It has to make sense. And it can't be this pastiche of, 'Well we're going to have this little exception here.' You have to think in ways that are very rigorous and intellectually honest. And if you do that, it will override your own ideological leanings on various issues."
As the interview came to a close, Sosman agreed to meet again. When I called her house a week later to make the arrangements, it was her father who answered. He said that Martha was at the doctor's office and wouldn't be home for some time. I left a message, but a few days passed without hearing back from her. I called again, and a weary-sounding Sosman came to the phone. She apologized for her grogginess, explaining that she'd recently undergone her first chemotherapy session and had yet to fully regain her strength. Only a couple of weeks before our first interview, she explained, she'd been diagnosed with breast cancer. I was stunned; she'd been so upbeat and untroubled that day at her office. When I asked whether she wanted to cancel the second interview, she responded immediately that she did not. And by the way, she added, "It's a good thing your photographer came before the chemo—while I still have my hair." Then she laughed that distinctive laugh.
"That's Martha," says Kyle Landt, who refers to herself as Sosman's surrogate sister, and who says that, in 35 years of friendship, she has never heard Sosman whine. When Landt phones to check on Sosman's condition these days, the judge invariably steers the conversation away from herself and to the Boston Red Sox, "especially Red Sox pitching."
Sosman doesn't care for the term "compartmentalize," but she gets the basic idea. Some people seem to be able to push even the worst news out of their mind for a while, to get the job done, whatever the circumstances. "I am able to focus on the present task at hand, and focus exclusively on that," she said. Some of that's probably an inborn trait, an aspect of character that accompanied Sosman into this world. Some of it, however, she learned. As a 12-year-old, she spent six months lying on her back in a full-body cast, recuperating from surgery to treat a severe curvature of the spine. ("She's a rock," explains Nicholas Theodorou, a lawyer who years ago worked with Sosman in the U.S. Attorney's Office. "She's a rock as a person.")
While it may be a stretch to equate courage in the face of debilitating injury or serious illness with resolve on the bench, those who know Sosman believe the two are related. Though she's often described as "apolitical," she can be stubborn, stern, and tough when it comes to an "intellectually honest" interpretation of the law. "She doesn't do things out of convenience," explains Landt. "She doesn't do things out of expediency. She does them because she feels that this is the way, given her interpretation of the law, a right-minded person decides. And she's comfortable with that."
Though Middlebury political science professor Murray Dry has never met Sosman, her thinking on gay marriage has convinced him that she is, in fact, a right-minded judge. "She wrote a very good dissent," Dry says. "She made clear the difference between constitutionality and wisdom." The majority's ruling, as described by Dry, was more art than science. It was built on the state constitution, meaning it cannot be overturned by the federal courts, but the precedents it depends on were not established in Massachusetts. "They were using United States Supreme Court precedents, but they didn't want to use the U.S. Constitution," Dry says. "They didn't want to be subject to appeal." By rejecting that sort of creativity, he says, Sosman's dissent "reflects an appreciation of the limits of the judicial branch."
Sosman's years in college coincided with a period of great social unrest throughout the country, but, perhaps in keeping with her apolitical nature, she recalls campus life with a sort of tranquil nostalgia. "I started to learn French when I was at Middlebury," she says. "My sophomore, junior, and senior years were spent living in the Château, where [we] spoke French all the time. We had a French drama club. In good weather, every evening after supper, the French students played volleyball. I had a great time." After graduation, Sosman worked for a time as a secretary, contemplating in an unhurried sort of way what she might like to do with her life. A gifted writer, speaker, researcher, and pianist, she had plenty of options. She decided eventually that a legal career would use the widest array of her skills and enrolled at the University of Michigan Law School.
She joined a large firm after law school, then took a job at the U.S. Attorney's Office in Boston, in 1984, working for Bill Weld in the years before he became governor. Weld promoted her in 1986 to chief of the office's civil division, which defends suits brought against the federal government. In 1989, Sosman and four other women from the U.S. Attorney's Office launched their own firm. She remained with the firm for nearly four years, leaving in 1993, when she was appointed to the Massachusetts Superior Court. "That was something she had been very up front with us about," says one of the principals, M. Ellen Carpenter. "If an opportunity to be a judge came along, she was going to take it."
In 2000, the then governor Paul Cellucci nominated Sosman for the SJC. At her swearing in, she invoked the memory of her late mother, who instilled in her daughter a sense of purpose and humility. "To my mother, it wouldn't make a difference that I'm going on the Supreme Judicial Court," she said. "It would make a difference to her that I'm a good judge."
It was a dreary, gray day when I arrived at the farmhouse in Concord, Massachusetts, where Sosman grew up. She met me at the driveway, wearing blue jeans and a denim shirt. Her head remained full of her own close-cropped hair, but she looked tired and pale. It had been about a week since her chemo session, and she felt weak. We walked slowly around the large house and settled in chairs on a comfortably worn porch.
Sosman returned to Concord not long after her mother died in 1993. She was ready to move out of Boston by then anyway, and someone needed to look after her elderly father. That Sosman is single and has no children made it simple to relocate. That she is also confident and direct, and wears her hair short, has made it simple over the years to speculate that she is a lesbian. She takes the rumors in stride, saying simply that they're not true. That didn't stop Bill O'Reilly from using them to mock the gay-marriage ruling. "Even the lesbian judge wouldn't go along with it," he told his Fox News Channel viewers. "I thought it was distasteful," Sosman told me. "When you see this kind of grating, obnoxious, baiting behavior—and you have been pulled into it—in some way, it's kind of creepy."
Whatever the judicial merits of Sosman's opposition to the SJC ruling, the controversy over gay marriage has largely subsided in Massachusetts. A plan in the legislature to rewrite the state constitution to specifically ban same-sex marriage and authorize civil unions was soundly defeated in September. There's a new citizens petition floating around that could ask voters to outlaw both gay marriage and civil unions, but its prospects are iffy at best. It appears increasingly likely that, however sound legally, Sosman's dissent in the gay marriage case will be judged by history as out of step with society. Despite a career overflowing with accomplishment—heading the civil division at a U.S. attorney's office, founding a law firm, sitting on both the superior and supreme judicial courts in her home state—that one opinion may well define her legacy.
That prospect doesn't seem to trouble her much. "If the ultimate take on any of my opinions is that I had a sound, correct, consistent intellectually honest application of the law as it stood, then the fact that it didn't advance the ball of history is not, I feel, any concern," she said. "I'm proud if people think I did a good job of applying the law in a consistent, sensible, intellectually honest way. That's what I'm trying to do." She's trying to be a good judge, just like her mother wanted.
I called Sosman a few weeks later with some follow-up questions. We chatted for a time, and, at the end of our conversation, I remarked that she sounded hardier, more energized, than when I'd seen her at her home. She said she felt stronger because it had been a while since her most recent chemotherapy session. "I'm feeling pretty good today," she said. "But they're going to hit me again next Tuesday." And then she let go one of those laughs.
John Wolfson is a senior writer at Boston Magazine. Previously, he was a court reporter with the Orlando Sentinel.