Wednesday, March 22, 2006

Webcasts of Oral Arguments Allow SJC Justice to Continue Through Illness

By Jonathan Saltzman, Boston Globe Staff | March 21, 2006

When the Supreme Judicial Court began broadcasting oral arguments on the Internet last May, proponents predicted that the webcasts would be must-see viewing for appellate lawyers, law students, and court buffs with a taste for something besides the latest sensational murder trial.

It turns out that the webcasts have also proved vital to helping an ailing justice continue her duties.

Justice Martha B. Sosman, who was diagnosed with breast cancer in mid-2005, has relied on the webcasts to view oral arguments she has missed at the John Adams Courthouse, said Joan Kenney, a spokeswoman for the court.

Sosman did not attend arguments for dozens of cases in September, October, December, and this month, Kenney said. The oral arguments take place the first full week of each month.

But the 55-year-old jurist watched many of those arguments at home on webcasts, live or archived, to flesh out the issues outlined in legal briefs read by all justices, court officials say.

SJC/Suffolk U. Webcast Archive

They say she has voted on a wide range of cases, regardless of whether she saw the arguments online, as long she discussed them with the other six justices, in person or on the phone, and examined the written briefs. She has not participated at all in a number of cases that have been decided during her illness. For instance, of cases heard in September, when she was absent, and since decided, she voted on at least nine and did not vote on at least three others.

Sosman, who is undergoing chemotherapy and radiation treatments, is a former federal prosecutor and Superior Court judge who was elevated to the high court by Governor Paul Cellucci in 2000. She declined to be interviewed, but the court said in a statement that she ''remains in regular contact with her colleagues, law clerks, and staff members."

Although she has written fewer opinions than usual, the statement said, when listed among the justices who decided a case, ''she has participated fully in all of the deliberations concerning those cases."

Chief Justice Margaret H. Marshall said in a separate statement that the webcasts have allowed Sosman, ''a most valued colleague, to continue to participate actively in our deliberations."

But some lawyers say that Sosman's absence changes the dynamic of oral arguments before the Supreme Judicial Court, which typically gives each side 15 minutes to make its case. They say she is a particularly tough questioner on a court known for trenchant inquiries.

Ellen J. Zucker, who appealed a verdict in a sexual-orientation employment discrimination case in October, said Sosman is respected for ''drilling down on an issue and refining the question in the court's mind."

''She is a very smart justice, and it's always good as an advocate to sharpen your argument when sparring with someone like Justice Sosman," Zucker said. Sosman is ''a very active jurist," said Beth L. Eisenberg, an appellate lawyer for the state public defender agency who most recently argued a case in December, when Sosman was absent. ''I always expect to get questions from her," she said. ''This is a dynamic she obviously finds intellectually satisfying."

Sosman is a skilled classical pianist who enjoys performing for judges and spouses at professional conferences, and her style on the bench is equally robust, said Robert A. Barton, a retired superior court judge.

''She's a player and not a spectator," he said.

The webcasts were made possible as one result of $147.4 million in recent renovations to the 1894 courthouse in Pemberton Square. Since the court began its latest session of arguments in September, the webcasts have received 8,000 hits from people from 30 countries, according to Suffolk University Law School, a partner with the court in the service. Court officials have been pleased with the webcasts' popularity.

Nothing in the rules of the high court, which was established in 1692 and is the oldest appellate court in continuous existence in the Western Hemisphere, requires justices to attend oral arguments to vote on cases.
Video LINK: SJC Webcast archive

Of 18 states that responded to a Globe inquiry relayed by the National Center for State Courts, only one, California, explicitly requires Supreme Court justices to attend oral arguments in order to vote. Even so, California's high court recently made a number of exceptions for a sick justice after lawyers for both sides consented. In some states, such as Pennsylvania, justices make a practice of not voting if they were absent for arguments.

On the federal level, Supreme Court Chief Justice William H. Rehnquist missed oral arguments in a number of cases, but continued to vote until he died last September of thyroid cancer.

Years ago in Massachusetts, justices who missed arguments because of illness generally relied on written briefs, though they could review audio recordings, said Herbert P. Wilkins, who served on the Supreme Judicial Court from 1972 to 1999, retiring as chief justice. ''I wouldn't want to abolish oral arguments," he said. ''They give each party a chance to explain why he or she ought to win the case."

Among the oral arguments that Sosman missed was a closely watched challenge to a 1913 state law that the Commonwealth has used to block out-of-state gay couples from marrying in Massachusetts. The court heard arguments in October, and its decision is eagerly awaited by many in the legal community and gay rights activists.

Sosman, a former board member of the Planned Parenthood League of Massachusetts and a founding partner of an all-female law firm in Boston, surprised some court observers by being among the three dissenters in the landmark 2003 opinion that legalized same-sex marriage in the state. She wrote that Marshall's majority opinion was dogmatic and ''merely repeats the impassioned rhetoric" of gay-marriage advocates.

Given that Sosman's vote in the challenge to the 1913 law could prove pivotal, members of the legal community said they would be surprised if she did not help decide the pending case.

''I have every expectation that she will have watched the [webcast] debate very carefully, read the papers very carefully, and will participate," Zucker said.

I am proud that Suffolk University Law School and Library have been involved in the webcasting, preparation of abstracts and the archiving of the webcasts of the oral arguments over the past year or so. It has been an interesting project to hear about. And I do hear, both from the side of those who produce the webcasts and archives and from the consumer side. I have an attorney friend who had an oral argument before the Court and watched her oral argument (she, like me hates how she looks, so she watched with trepidation). But her husband and partner in a small firm was delighted with the video and will be highlighting it for publicity purposes, and studying it to improve their work.

And now, just before a decision must be made about whether the state is willing to help pay the expenses to continue the service (hmmm), here comes this article about Justice Martha Sosman. I think this is a very interesting use, and as a woman, I have mixed feelings. I support somebody who is going through the trauma of breast cancer treatment. But think about this: if it were your case in front of the court, would you want it decided in part by a justice who wasn't there and was deciding based on the taped arguments?

When I was on the road to tenure, there was one year when neither of the senior faculty who were assigned to view my class who could come. They both viewed a tape. I think they really could not tell what was going on. You can't see anything happening at the board, or on the drop-down screen. You can't hear asides or "mutterances." And more to the point, Justice Sosman, noted above as an active Justice (and she is!), was not present in the mix of questioning.

Should she just have recused herself? Is viewing tapes of an oral argument good enough? Will it one day be enough to view a tape of the trial? Wow? How far can we push it? And why? What are the grounds on which we decide which is OK and which is not OK? But then, you read in the article that in the past and in some other states, justices have participated in decisions in which they only read the briefs -- never saw or heard the oral argument, because of course, archived video is new. Maybe I should just be glad that she has the diligence to do this and only participate in decisions in which she viewed the oral arguments. I do think the oral arguments vastly modify what is presented in the briefs -- or should. I participated in both phases in my short career as an attorney, and found the oral argument was an important adjunct to the briefs.

As I said, I have mixed feelings. Maybe I can be a beach librarian and just manage the library from a PDA. That would be nice. Warmer weather would agree with me.

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