Clerks’ RemembrancesPosted: December 16, 2020
Appreciation of Chief Justice Gants
by Abrisham Eshghi
“Imagine a world.” Some of the Chief’s greatest questions began with these three words. Sometimes, they prefaced a thought-provoking hypothetical where the Chief would alter the facts. Other times, they required thinking through the broader implications of a potential ruling that initially seemed straightforward. But, most often, these words were an invitation to imagine a world that is better than ours, and to imagine what we need to do to get there.
I had the extraordinary privilege of clerking for Chief Justice Gants in the 2017-18 term. It was a year spent trying to reason like him, react like him, probe like him, and simply keep up with him.
He welcomed disagreement. A cherished mantra of his was “when you point out that my reasoning does not make sense, there are only two possible outcomes: Either you have allowed me to avoid making a mistake, or you have identified that there must a better way to articulate this.” In fact, he assigned his clerks homework on this topic, such as a chapter from Malcolm Gladwell’s Outliers discussing a theory of why Korean airlines experienced a disproportionately high rate of plane crashes. The theory begins with the fact that when signs of danger appear during a flight, the pilot who spots the signs must alert the other pilots. Yet in cultures that value deferential communication styles with authority figures, this may translate to a cockpit where instead of the lower-ranking pilot unequivocally communicating imminent danger to the higher-ranking pilot, the lower-ranking pilot instead meekly suggests that something may not be quite right. My takeaway – yell at the Chief so he does not crash the plane!
He welcomed compassion. He truly never lost sight of the people that were governed by the cases that came before the Court. While other judges might start and end a case with the routine application of a statute or precedent, in the Chief’s hands, the case blossomed into an opportunity to examine how citizens of the Commonwealth live and experience the world around them. Standards of how a “reasonable person” would act or think are baked into almost every area of the law, and “common sense” is routinely invoked by courts as grounds for choosing one argument over another. But the Chief cautioned his clerks against blindly accepting words like “reasonableness” and “common sense,” as they were often shorthand for the convenient status quo. “Reasonable for whom?” he would ask. “Common sense for whom?”
He welcomed accessibility. The Chief never wanted to “hide the ball” in his work and habitually requested that his clerks craft judicial opinions so that “even an intellectually curious fourteen-year-old” could understand what he was trying to say. If, in the course of drafting an opinion, we encountered a tortuous precedent, he would insist that we “say it better” without replicating the difficulties. He had a knack for homing in on the occasionally muddled or misguided ways in which parties to a case framed issues, and then crafting a cleaner explanation of what the case was really about. The ease with which he exercised this last skill was particularly admirable.
It pains me to think about how much more he had in him to give. My only comfort is in sifting through my myriad memories of the time I was lucky enough to share with him. I will miss his brilliant questions, and his even more brilliant solutions. I will miss his antiquated cultural references that went over my head. I will miss his Red Sox metaphors that also went over my head. I will miss him addressing the trio of himself, my co-clerk Maia, and me as “us gals.” I will miss the intense swell of pride I felt during his 2015 speech at the Islamic Society of Boston Cultural Center when he said “[y]ou do not stand alone.” I will miss him spontaneously making up new lyrics to the song “The Impossible Dream” from Man of La Mancha. I will miss our rejuvenating “mental health walks” as we meandered through Boston Common. I will miss watching him absentmindedly devour an entire baguette in one sitting. I will miss seeing the two sizeable portraits of Justice Louis Brandeis and Justice Thurgood Marshall looming over his desk and thinking to myself that, with room on the wall for a third, a portrait of the Chief would complete this triptych of legal giants. I will miss the sparkle in his eye when he knew there was challenging work to be done. I will miss his infectious fits of giggles. And I will sorely miss him next year at my wedding, where he had promised to officiate.
I recently found the copy of The History of the Law in Massachusetts that the Chief gifted me on the last day of my clerkship. His parting words to me, penned on the front cover in his quirky doctor’s scrawl, were “believe in yourself as I believe in you.” Prior to his death, these words brought me great comfort. But in death, his words take on a different form. I feel them almost vibrating off of the page. Demanding that I believe in myself. Demanding that the time is now to take action. Demanding that I pick up the baton and continue his work.
Chief Justice Gants was inimitable. But we must now try our hardest to step into his magnificent mind so that we may carry on his extraordinary legacy.
I hope you’re still getting in good trouble, Chief.
Abrisham Eshghi is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office. She clerked for Chief Justice Gants during the 2017-18 term.
Appreciation of Chief Justice Gants
We had the enormous privilege and pleasure of serving as law clerks to Chief Justice Gants during his first full year on the Supreme Judicial Court (2009-2010). He was an extraordinary teacher and mentor, and the year we spent in his chambers fundamentally shaped how we view the law and our role and responsibilities as lawyers.
Law clerks, when they are able to be helpful at all, tend to treat every case as a purely legal problem that can be solved by identifying the perfect case citation, judicial doctrine, or other legal tool. Chief Justice Gants took a broader view: all cases presented legal problems to solve, but most cases also required a judgment that weighed considerations of policy, administrability, and equity. In deciding a case, the Chief was always grateful for a clerk’s cogent legal analysis and the best citations available, but it was usually clear that — having been pretty sure from the start what the law was likely to provide — he had been spending his own time thinking through what the real-world consequences of the Court’s decision would be for lawyers, judges, and most particularly, everyday people.
He loved people — all sorts of people, including the two of us, a couple of strangers he found already hired and deposited with him even before he was confirmed. His law clerks were special to him, and he taught us with humor and affection. “You’re not a Jedi Knight yet, but you show great promise” is how he began his gentle review (and quiet wholesale restructuring) of the work we produced for him in the earliest months of the term, when we knew the least. He liked to take us on working walks across the Common to talk through cases that would be helpful to him as he worked out the shape of his decisions in his mind. This met his need for constant activity in days that were always too short for everything he wanted to get done: work, mentoring, and a little light exercise all combined in one outing. He was a brisk walker, but halfway across the street, we sometimes found we had left him on the corner: he never jaywalked, not even on the margin.
Every few weeks, the Chief would invite us to a sit-down lunch at his favorite Chinatown cafe. For the first few lunches, we expected that he had set the occasion to impart some great piece of wisdom or to let us know of some important development on the Court, but actually he just wanted noodles, a friendly chat, and a short break from his work. During our year at the Court and in all the years that followed, the Chief kept up with our personal and professional news and also with the accomplishments of our spouses and children. We never could figure out how he had the time or head space to manage this.
The Chief’s deep interest in people was at the heart of his work as a judge, and he was dogmatic only in his drive to deliver more justice to more people, inject more fairness into society, and bring more good to the world. The clearest expression of his judicial philosophy is the statement he made in a 25th anniversary Harvard class report, that deciding cases required him to balance the “sometimes conflicting obligations of following the law and ensuring fairness.” Worrying about the fairness of a legal rule requires a judge actually to see and consider the rule’s consequences for the individuals affected by it. The Chief put all of his intelligence and experience and wisdom into seeing those consequences clearly and weighing them fairly. First as an associate justice of the Court, then as its leader, the Chief believed the Court’s mission was not to hand down the law to the people but rather to make the law serve the people.
Early on, his decisions took on this mission in smaller cases like Papadoupolos, where he dispensed with the Commonwealth’s unique “natural accumulation” rule for liability claims involving snow and ice, a legal doctrine that gave no consideration for people injured in falls and that had long survived only on the basis of its repetition in the case law. Later, when he had reached the height of his own Jedi powers, he and the Court executed on this mission in much bigger cases, like Adjartey, which delivered a clear-eyed and comprehensive view of the systemic inequality and inequity that can arise in housing court, where most tenants are without counsel. The Chief’s opinion in Adjartey made the problems of people who must rely on the housing court seen and heard for the first time, and made the judicial system responsible for addressing those problems. Eleven years into our careers as lawyers, this challenge — to discern not only what the law allows, but also what fairness demands — is the most valuable, continuing lesson we take from our year working with the Chief.
The Chief never achieved his first great ambition, to play shortstop for the Red Sox, but as a judge, he had made it to the major leagues. That is what is so deeply tragic about losing him now. Six years into his role as the chief justice and with four years left before hitting the Court’s mandatory retirement age, he was really just rounding second base. He had established himself as one of the great jurists in the history of the Supreme Judicial Court, and he was focused on making permanent his mark on the justice system writ large. A hugely important report he had commissioned on racial disparities in the Massachusetts criminal justice system was published five days before his death. The morning he died, he was hammering out details of a statewide eviction diversion initiative, which aims to address the civil justice gap across the Commonwealth’s housing courts as they brace to manage the economic fallout from the COVID-19 pandemic. His heart was in the work of reform. As we grieve, it is in large part for the work he leaves undone.
Also, we miss him.
Larisa Bowman is a Visiting Associate Professor at the University of Iowa College of Law. She clerked for then-Associate Justice Ralph D. Gants during the 2009-2010 term.
Mike Kaneb is Deputy Chief Legal Counsel to Governor Charlie Baker. He clerked for then-Associate Justice Ralph D. Gants during the 2009-2010 term.