Sheppard: Attitude Issues

SHEPPARD.
FINAL 5/9/2008 4:36:53 PM
ARTICLES
ATTITUDE ISSUES: THE DIFFICULTY

OF USING PERSONAL AND
IDEOLOGICAL CHARACTERISTICS
TO PREDICT JUSTICE MARTHA B.
SOSMANS DECISION IN GOODRIDGE
V. DEPARTMENT OF PUBLIC HEALTH
BRIAN SHEPPARD*
Abstract: Some predicted that Justice Sosman would side with the
appellants in Goodridge v. Department of Public Health and hold that the
then-existing civil law limiting marriage to the union of a man and a woman
violated the Massachusetts Constitution. These prognosticators believed that,
among other things, Justice Sosmans service as a board member of Planned
Parenthood of Massachusetts and as a founding partner of an all-woman law
firm were reliable indicators of her political ideology and, ultimately, of her
eventual decision in the case. Naturally, they were surprised when Justice
Sosman sided with the appellees in dissent. In this article, I analyze, with the
help of empirical literature, the evidence available to the public on the eve of
the Supreme Judicial Courts landmark decision in an effort to determine
whether their surprise was warranted. I conclude that it was not: a more
reliable predictor than the character of her personal and professional life was
her own judicial record with respect to the issues raised in Goodridge.
* S.J.D. candidate and Climenko Fellow, Harvard Law School. I would like to thank
the following people for their valuable assistance: Jamie Sheppard; Daniel Coquillette,
Lewis Sargentich; Gretchen Van Ness; Judith Yogman; Amy Reichbach; Chief Justice
Margaret H. Marshall and Associate Justice Robert J. Cordy of the Supreme Judicial Court
of Massachusetts; and Jennifer Sunderland and the editorial staff of the New England Law
Review. Any errors are my own. This article is dedicated to Martha Sosman, a cherished
mentor and friend.
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408 NEW ENGLAND LAW REVIEW [Vol. 42:407
INTRODUCTION
Predictability is an odd characteristic. When it comes to machines and
markets, it is highly desirable, but when it comes to people, no one wants to
hear, youre so predictable. Thats too close to boring, and we fancy
ourselves a bit too mysterious and complicated for that. But if were honest
with ourselves, we know that there are certain dimensions of our lives in
which we behave in an obviously patterned way. For instance, many of us
have daily routines or personal rituals: I can be predicted to leave my coat
on the chair rather than hanging it up in the closet, as my wife is keen to
point out. In addition, many of us engage in structured, rule-ified social
activities. These channel our conduct, improving the likelihood that we can
make a reliable prediction of an important outcome within them. We can
predict with a high likelihood of success that a starter will be benched
immediately after getting his or her fourth foul in the first half of a
basketball game. A simple coin flip will correctly predict the winner of a
tennis match about half the time.
Judging is often thought to be more like the second, structured
activity. Judges operate within a rules structure, whether the rules come
from a pedigreed text, a custom, or elsewhere. Indeed, predictability is
supposed to be one of laws essential strengths. Certainly judges can be
relied upon in most cases to declare a single winner among a small group
of litigants. Some go further and contend that the law, in conjunction with
the facts of the case, is or ought to be sufficient to allow us to know in
advance what the legal outcome will be. This says little of judicial
character, which on this viewlets call it the legal viewis valuable only
insofar as it doesnt get in the way of prediction. There are other views, of
course. Some care more about the judges personality or political beliefs
and less about the rules of the game when they make a prediction. Under
this viewlets call it the attitude viewthe law does not matter so much
as the judges attitude towards the subject before her, so the better
prediction would be one based upon what is known about a judges attitude
towards the consequences that would likely come about under the various
case outcomes available.
If given only these two options, judges, themselves, are far more
likely to voice support for the legal view and to deny the accuracy of the
attitude view. That does not mean that they are right, nor does it mean that
judges are not complex individuals, as we are keen to believe about
ourselves. It does mean, however, that the mere making of an attitude-
based prediction is likely to be taken by the judge about whom it concerns
as a personal indictment.1
1. Legal scholars are fond of pointing out that the political climate in the United States
2008] ATTITUDE ISSUES 409
Here, I analyze one such predictionthat Supreme Judicial Court

Justice Martha B. Sosmans attitude would cause her to rule in favor of
legalizing same-sex marriage in the case Goodridge v. Department of
Public Health. I conclude that the prediction was unfounded: Justice
Sosman was a uniquely complex individual who did not appear to possess
an ideology or a biased attitude regarding gay rights and that a better
prediction for her decision can be drawn from a plain, honest reading of
Sosmans prior decisions in cases germane to the issues raised in
Goodridge.
I. GOODRIDGE, THE PREDICTION, AND A DISCLAIMER

There can be little doubt that Goodridge is the most famous case upon
which Justice Sosman sat. A very short summary will suffice.
Officials refused to grant marriage licenses to seven same-sex couples
on the ground that Massachusetts General Laws chapter 207 restricted the
grant of such licenses to opposite-sex couples. In response, these couples
challenged the statute, arguing before the Massachusetts Superior Court
and, ultimately, the Supreme Judicial Court (SJC), that this restriction
violated the Massachusetts Constitution on the grounds that none of the
Commonwealths asserted interests of procreation, childrearing, and
conserving resources could be given any weight because they bore no
relationship at all to the plaintiffs exclusion from marriage. For this
reason, the Goodridge appellants argued, the restriction failed the test of
strict scrutiny. They contended that this plaintiff-friendly standard of
review was appropriate because the statute infringed upon the fundamental
nearly forces judges to maintain that they merely apply the law rather than legislate from the
bench, even if that claim is, under many circumstances, a myth.
Admittedly, courts are often in a very delicate political situation. Higher
courts typically have more political power than people assume. Courts
determine what the law is, often prevailing over the democratically-
elected legislature. This disparity between actual power and public
perception has always put considerable pressure on the courts to conceal
some of the power they actually have, typically by presenting judge-
made law (that is often inevitable) as an act of law application. This is
understandable and not necessarily a bad thing.
Andrei Marmor, Theories of Statutory Interpretation: The Immorality of Textualism, 38
LOY. L.A. L. REV. 2063, 2078 (2005); see also BRIAN LEITER, Postscript to Part II: Science
and Methodology in Legal Theory, in NATURALIZING JURISPRUDENCE 191 (2007)
(Moreover, [judges] almost all share one behavior in common: namely, the concealment of
their ideological aims behind rhetoric which involves purporting to take the normativity of
law seriously: judges, of all ideological persuasions, claim they do what they do because
they have legal obligations to reach these decisions, not because they feel an obligation to
implement their ideology.).
right of marriage,2 because its restriction constituted sex discrimination,3

and/or because it distinguished on the basis of the suspect class of sexual
orientation.4 They alternatively claimed that the restriction failed even to
survive the more deferential rational basis test,5 which applies to statutes
that neither implicate a fundamental right nor utilize a suspect
classification.6 A majority of the SJC sided with the appellants, persuaded
that the statute foundered under rational basis scrutiny.7 Their ruling led to
the eventual legalization of same-sex marriages in the Commonwealth.
Justice Sosman joined two other dissenters and authored a dissent of
her own, in which she challenged that the majority had worked a change
upon the rational basis test and overstepped the bounds of its judicial role.
She wrote:
Through the political process, the people may decide when the
benefits of extending civil marriage to same-sex couples have
been shown to outweigh whatever risksbe they palpable or
ephemeralare involved. However minimal the risks of that
redefinition of marriage may seem to us from our vantage point,
it is not up to us to decide what risks society must run, and it is
inappropriate for us to arrogate that power to ourselves merely
because we are confident that it is the right thing to do.8
The Goodridge decision became the talk of the nation, and its cultural
and political impacts were significant.9 It came as little surprise when, after
2. Brief of Plaintiffs-Appellants at 42-48, Goodridge v. Dept of Pub. Health, 798

N.E.2d 941 (Mass. 2003) (No. SJC-08860) [hereinafter Appellants Brief], available at
http://www.glad.org/marriage/Goodridge/Appellants_Brief.pdf.
3. Id. at 48-61.
4. Id. at 61-79.
5. Id. at 79-96.
6. Goodridge v. Dept Pub. Health, 798 N.E.2d 941, 960 (Mass. 2003) (citing English
v. New England Med. Ctr., 541 N.E.2d 329, 332 (Mass. 1989)).
7. Id. at 961 (The department argues that no fundamental right or suspect class is at
issue here, and rational basis is the appropriate standard of review. For the reasons we
explain below, we conclude that the marriage ban does not meet the rational basis test for
either due process or equal protection. Because the statute does not survive rational basis
review, we do not consider the plaintiffs arguments that this case merits strict judicial
scrutiny.) (internal citation omitted).
8. Id. at 982 (Sosman, J., dissenting).
9. Some have even argued that the decision was a decisive factor in the Republican
victories of 2004. See, e.g., Donna Britt, Gay Unions Put Kerry Campaign Asunder, WASH.
POST, Nov. 5, 2004, at B4, available at http://www.washingtonpost.com/wp-
dyn/articles/A26839-2004Nov4.html; Brian P. Burke, Same-sex Marriage Affected Election,
WORCESTER TELEGRAM & GAZETTE, Nov. 8, 2004, at A9, available at 2004 WLNR
13863188; Alan Cooperman & Thomas B. Edsall, Evangelicals Say They Led Charge For
Justice Sosmans passing, the numerous obituaries about her almost

invariably discussed her dissent in that case.10 Among them, certain articles
discussed public reaction to it, noting that a population of court observers
expected her to side with those who sought legalization of same-sex
marriage. As it is the leading paper in the region that is most likely to
remember her, the most important of these obituaries was the Boston
Globes. It stated: Justice 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 in the legal community by
joining two other justices in dissent against the landmark 2003 decision
legalizing same-sex marriage.11 The article goes on to add Sosmans
rejoinder, however:
[a] quick review of the resume makes people leap to various
conclusions about me, she told the Globe three years ago. The
five-woman firm, the involvement with Planned Parenthood, I
the GOP, WASH. POST, Nov. 8, 2004, at A1, available at

http://www.washingtonpost.com/wp-dyn/articles/A32793-2004Nov7.html; James Dao,
Same-Sex Marriage Issue Key to Some G.O.P. Races, N.Y. TIMES, Nov. 4, 2004, available
at http://www.nytimes.com/2004/11/04/politics/campaign/04gay.html; Editorial, Goodridge
Legacy: National Backlash, BOSTON HERALD, Nov. 18, 2004, at 42, available at 2004
WLNR 10880415; Dana Hull, Gay-Marriage Opposition Seen as Factor Aiding Bush, SAN
JOSE MERCURY NEWS, Nov. 4, 2004, at A13, available at 2004 WLNR 19560976; Elizabeth
Mehren, State Bans on Gay Marriage Galvanize Sides, L.A. TIMES, Nov. 4, 2004, at A11,
available at 2004 WLNR 19772337; Noah Peters, Another Battle in the Culture War,
CAVALIER DAILY, Nov. 12, 2004, available at http://www.cavalierdaily.com/
CVArticle.asp?ID=21392&pid=1218; Katharine Q. Seelye, Moral Values Cited as a
Defining Issue of the Election, N.Y. TIMES, Nov. 4, 2004, at P4, available at
http://www.nytimes.com/2004/11/04/politics/campaign/04poll.html; Walter Shapiro,
Presidential Election May Have Hinged on One Issue: Issue 1, USA TODAY, Nov. 5, 2004,
at 6A, available at http://www.usatoday.com/news/opinion/columnist/shapiro/2004-11-04-
hype_x.htm; Joan Vennochi, Editorial, Was Gay Marriage Kerrys Undoing?, BOSTON
GLOBE, Nov. 4, 2004, at A15, available at http://www.boston.com/news/politics/president/
articles/2004/11/04/was_gay_marriage_kerrys_undoing/.
10. See, e.g., Jesse Harlan Alderman, Martha B. Sosman, Who Voted Against Gay
Marriage, Dead At 56, ASSOCIATED PRESS, Mar. 11, 2007, available at
http://www.boston.com/news/local/massachusetts/articles/2007/03/11/martha_b_sosman_w
ho_voted_against_gay_marriage_dead_at_56/ (Martha B. Sosman, one of three
Massachusetts Supreme Judicial Court judges who voted against the landmark decision
legalizing gay marriage in the state, has died, the court said Sunday.).
11. David Abel, Justice Sosman of the SJC Dies at 56, BOSTON GLOBE, Mar. 12, 2007,
at B1, available at http://www.boston.com/news/local/articles/2007/03/12/justice_
sosman_of_the_sjc_dies_at_56/. The same notion appears in an earlier Boston Globe article
as well. See Jonathan Saltzman, Webcasts Open Vital Link for Ailing SJC Jurist, BOSTON
GLOBE, Mar. 21, 2006, at A1, available at http://www.boston.com/news/
local/massachusetts/articles/2006/03/21/webcasts_open_vital_link_for_ailing_sjc_jurist/.
think added to this image that I was going to be this crusading

feminist liberal whatnot, which is certainly not what I am.12
A review of material published before the Goodridge decision
provides support for the claim that a considerable segment of the
population predicted that she would support legalization. U.S. Lawyers
Weekly,13 the Boston Globe,14 and various websites15 made express
12. Abel, supra note 11; see also Ann Rostow, Peter Piper Picked a Peck of Pickled
Peppers, S.F. BAY TIMES, Mar. 15, 2007, available at http://www.sfbaytimes.com/
index.php?sec=article&article_id=6199 (containing same Sosman quote).
13. In an article that attempted to predict how the various SJC justices would decide
Goodridge, the author had this to say about Justice Sosman:
The youngest member of the SJC, Sosman, 52, was a respected Superior
Court judge for seven years before Governor Cellucci selected her to
join the states highest court in 2000. The University of Michigan Law
School graduate was in private practice in both a big law firm and a
small one before joining the bench, and also worked for five years as a
federal prosecutor. Although Sosmans judicial opinions have not
necessarily reflected any particular ideology, when she was in private
practice she represented a female divorce attorney who refused to
represent men and Sosman herself was a partner in an all-woman law
firm. She was also a member of the Womens Bar Association of
Massachusetts, which often takes gay-friendly positions, and was a
member of the Board of Directors of the Planned Parenthood League of
Massachusetts for six years. In a 1994 interview with Massachusetts
Lawyers Weekly, Sosman, then a newly appointed trial judge, cited the
SJCs role in decid[ing] important policy issues as a reason to
possibly aspire to a higher court some day.
Paul J. Martinek, Goodridge v. Dept of Public Health: The Justices, LAWYERS USA (2003),
http://www.lawyersweeklyusa.com/Goodridge2.cfm (last visited Feb. 13, 2008) (on file
with the New England Law Review).
14. See Kathleen Burge, A New Order in the Court the Overhaul Complete, The Biggest
Question Before the Massachusetts SJC Remains: Where Is It Going?, BOSTON GLOBE, Oct.
21, 2001, at B1, available at 2001 WLNR 2278339 (discussing possibility that
preponderance of women on SJC will affect decision on same-sex marriage).
15. See, e.g., Posting of homaffectional to http://www.youdebate.com/cgi-
bin/scarecrow/topic.cgi?forum=18&topic=846 (July, 24, 2003, 01:10 AM) (alteration in
original).
From what I gather, this is what were looking at (but keep in mind this
is not a prediction by any means so quote me all you like, but dont hold
me accountable) [sic] Before the Ontario Appeals & Lawrence decisions
it was still a likelihood that gay marriage would be legalized - however,
it was most likely because there would have been a 3-2 decision with 2
abstensions [sic]. Someone more familiar with the Massachusetts
constitution would probably have to explain to me if its possible to
have a majority that is not really a majority according to the Mass.
predictions or strong suggestions of what was likely to transpire. Certainly

there were more, but they failed to publish their projections.
In the obituaries, the basis of the prognostication is clear and
troublingSosmans personal politics would dictate her decision. Worse
still, is the subtle suggestion that those who made the predictions possessed
specialized knowledge of the SJC; the Globe articles, for instance, describe
these anonymous commentators as court observers and members of the
legal community.
The prognosticators appear to be adherents to the attitude view; they
believe that judicial attitude, especially a judges political ideology, is the
best predictor of legal outcomes. It would be fair to assume, then, that
Justice Sosman would not have welcomed the claim that she would choose
state constitution. Since the Ontario Appeals decision and especially

Lawrence, a new scenario is emerging. This is what I would have
predicted in general if all justices voted either way and chose not to
abstain:
There are 3 yes votes for sure: Chief Justice MARSHALL, IRELAND,
& SOSMAN [sic] 2 no votes for sure: COWIN & CORDY [sic] One
swing that will side with the majority & thus really depends on the votes
of the others, especially the only real swing (See below): GREANEY
The only real swing: SPINA [sic] However, Im thinking that Greaney
may actually step outside of his usual modus operandi and be a crucial
decision maker precisely because of the Canada legal precedent. He
may side with the yes faction and thus eliminate any chance of the
number of no votes even including abstentions being the majority
over the # of yes votes. So perhaps the delay turned out to be a good
thing after all. Well see come the morning of the decision . . .
Id.; Kavan Peterson, Massachusetts High Court Weighs Gay Marriage Ruling,
STATELINE.ORG, July 21, 2003, http://www.stateline.org/live/printable/story?contentId=
15323.
Lawyers involved in the case refuse to guess how the court will rule, but
advocates and opponents of homosexual marriage predict a decision that
will bolster the rights of gay and lesbian couples. Most legal scholars
who have looked at Massachusetts supreme court justices are
concerned that they are going to rule against the will of the people and
endorse same-sex marriage, Genevieve Wood, a vice president of the
Family Research Council (FRC), a Washington, D.C. based advocacy
group that opposes same-sex marriage, told Stateline.org.
Id.; see also CNN Live This Morning (CNN television broadcast Apr. 14, 2001) (Transcript
# 081406CN.V74 on file with the New England Law Review), available at LexisNexis
database CNN Transcripts (CNN Correspondent, Bill Delaney, stating, Many on both
sides of the issue believe the Massachusetts courts will rule in favor of same sex marriages
this fall, with the battle to ban the marriages through legislation or a constitutional
amendment likely to continue for years.).
the result in Goodridge that would most advance her ideological agenda.
Indeed, she told the Executive Council when it considered her confirmation
as Associate Justice of the SJC that [n]othing in our Constitution, state or
federal, gives Martha Sosman or any other judge the power to inflict her
own agenda, political or social, on the people of this Commonwealth, and
that I not only believe in judicial restraint, I practice what I preach.16
The fact that the prediction that she would decide in favor of gay
marriage was mistaken only removes some of the sting. Its mere mention in
her obituary gives it a significance that could plausibly lead one to guess
that Sosmans dissent in Goodridge was something of an anomaly, a
deviation from her pattern of ideologically-driven behavior. She might then
seem, not only like an ideologue operating in bad faith, but a weak-willed
one at that, willing to drop her principles when the political heat was at its
highest.
The following analysis will, I hope, dispel this mistaken conclusion
and show that the ideological prediction was unfounded.
It is critical to add that this will not be an article about the Goodridge
decision. I am not at liberty to discuss that case in any detail because I
served as a law clerk for Justice Sosman during the period in which the
court adjudicated it. Thus, I will not provide any information about it that is
not already publicly available. Nor will I opine on the correctness of Judge
Sosmans dissentscholars more qualified than I have fully digested the
merits of Goodridge already.17 Instead, this Article seeks to go back to the
eve of the Goodridge decision and consider whether then-publicly available
information supported the notion that Justice Sosmans personal
characteristics made her likely to conclude that same-sex marriage ought to
be legalized. Finally, in the interest of total disclosure, I should also
mention that, despite my best efforts, my analysis might suffer from bias.
Justice Sosman was my role model and my friend.
II. METHODOLOGY, TERMINOLOGY, AND MODELS

Before analyzing the prediction, it is necessary briefly to set forth the
criteria for evaluating whether it was well-founded. It will further be
helpful to examine the prediction in more detail.
With respect to our evaluation of the prediction, the following will
attempt to determine whether the weight of available evidence on the eve
16. Daniel Barbarisi, Opponents Protest High Court Nominees Views on Abortion,
BOSTON GLOBE, July 20, 2000, at B3 available at 2000 WLNR 2292001.
17. See, e.g., Lawrence Friedman, Ordinary and Enhanced Rational Basis Review in the
Massachusetts Supreme Judicial Court: A Preliminary Investigation, 69 ALB. L. REV. 415
(2006); Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431
(2005).
of the Goodridge decision supported the prediction. The approach is

simple: if the prediction meets this preponderance test, it is well-founded.18
With respect to the contours of the prediction, we must first determine
the specific claim being made and then charitably search for supporting
evidence. Because we know little about the particular predictions rendered,
some effort must be made to flesh them out. When undertaking such an
exercise, one risks arguing against a straw man. Thus, it is important to
advance the strongest possible arguments in support of the prediction.
A. The Prediction in Detail

The newspaper articles previouslyy mentioned provide a good starting
point. They identified certain characteristics that these court forecasters
believed would serve as predictors. They include the following: (1) that
Justice Sosman was a member of the Womens Bar Association (WBA);
(2) that she started an all-women law firm; (3) that she was a board
member of the Planned Parenthood League of Massachusetts; (4) that she
was the youngest member of the SJC; (5) that she had once stated that a
reason to aspire to be a justice with the SJC might be its role in decid[ing]
important policy issues.19 Note that none of these factors have to do with
her work product as a judge nor with the content of the legal materials that
might bear on the Goodridge case. Rather, the prognosticators appear to
have mined the data about Justice Sosmans personal and professional life
and picked out what they believe are salient indicators of her ideology.
Ideology plays a pivotal role here: it was the predicted impetus for Justice
Sosmans behavior, and it is what gives the prediction a troubling, critical
edge. It will serve us well, then, to discuss ideologys role here at some
length.
B. Ideology
Sometimes, an analysis of just the legal materials that bear upon a
case will make it apparent that the case requires the presiding judges to
legislate from the bench. With respect to this point of viewthe one that
evaluates the capacity of the legal materials to dictate the resolution of the
18. In short, the article examines the evidence to see if it provides more support for the
prediction that she would side with the Goodridge appellants than for the prediction that she
would not. The balancing will follow common sense principles; there is no need to set forth
criteria for weighing. The results here do not present a close enough case to be concerned
with such matters. In addition, even though our examination will focus on evidence
available on the eve of Goodridge, it will also include discussion of empirical literature
published after Goodridge. In nearly all cases, however, the findings in the post-Goodridge
literature are based largely upon pre-Goodridge data.
19. See supra note 13.
instant caseH.L.A. Hart famously informed us that

in any legal system there will always be certain legally
unregulated [hard] cases in which on some point no decision
either way is dictated by the law and the law is accordingly
partly indeterminate or incomplete. If in such cases the judge is
to reach a decision . . . he must exercise his discretion and make
law for the case instead of merely applying already pre-existing
settled law.20
While Hart distinguished between the hard cases that require
legislation and the easy cases that do not, others, like Hans Kelsen, have
contended that every single case requires judicial legislation.21
Even if one believes that only the hard cases force judicial legislation,
a persuasive argument could be made that Goodridge was a hard case.22 It
bears some of the marks of a hard case. Among other things, the case
divided the court, called on them to opine on the rationality of a legislative
action, and concerned an issue of first impression in the Commonwealth. If
I am willing to concede that Goodridge was predictably hard, then am I
also conceding that it was predictable that the SJC justices, including
Justice Sosman, would be forced to decide the case on an ideological
ground? No. There are other ways to decide a hard case under those
circumstances.
20. H.L.A. HART, THE CONCEPT OF LAW 272 (2d ed. 1994).
21. HANS KELSEN, PURE THEORY OF LAW 246-49 (Max Knight trans. 1967).
22. See Vincent J. Samar, Sexual Orientation: The Judicial Response: Bowers,
Lawrence and Same-Sex Marriage: A Meeting of Hard and Very Hard Cases, 24 ST. LOUIS
U. PUB. L. REV. 89, 96-98 (2005). The author described Goodridge as a hard case and
explained:
It might be questioned why same-sex marriage is not simply a hard
case where judges and others may simply not like the result that equal
protection clauses force upon them. The answer is that equal protection
clauses are not all that clear. For example, take the federal Equal
Protection Clause, which is part of the Fourteenth Amendment to the
U.S. Constitution. When the amendment was passed, it was designed to
remove a certain form of racial discrimination that was likely to keep
former African-American slaves as an underclass in the former
succeeding southern states. However, broader interpretations of the
amendment have led to its use as a means for removing discrimination
against politically powerless classes of persons who are identified by
some immutable trait through no fault of their own. Would such an
immutable trait include finding happiness by having a recognized legal
relationship with another person of the same sex? That is a question for
which the courts have been uncertain.
Id. at 98 (internal citations omitted).
Judicial legislation is not necessarily ideological in the sense used

here. In other words, when the concern is the personal politics of a judge,
ideology has a narrower meaning. A few examples follow which illustrate
what we do not mean. For instance, even in easy cases (insofar as they
exist), the judges straightforward application of legal precedent to the facts
of the case is, in some sense of the word, ideological; the judge adheres to
the ideology of Liberal legality, a core tenet of which is stare decisis, or so
the argument goes.23 Taking a very different example, a judge who decides
to rule in favor of or against a party based upon a coin flip could be said to
be an adherent to an ideology, albeit bizarre, in which it is held that the best
answer under the circumstances is the one coming up tails. But these are
not situations that come to mind when one discusses ideological
adjudication. Rather, the particular species of ideology that we and judges
are concerned about is the kind that, if utilized, would be understood by the
general public both to threaten the rule of law and to provide preferential
treatment to some interest group that is a player on the political landscape.
Ronald Dworkin, of course, has argued for decades that the judge in a
23. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854
(1992).
The obligation to follow precedent begins with necessity, and a contrary
necessity marks its outer limit. With Cardozo, we recognize that no
judicial system could do societys work if it eyed each issue afresh in
every case that raised it. Indeed, the very concept of the rule of law
underlying our own Constitution requires such continuity over time that
a respect for precedent is, by definition, indispensable. At the other
extreme, a different necessity would make itself felt if a prior judicial
ruling should come to be seen so clearly as error that its enforcement
was for that very reason doomed.
Id. (internal citations omitted); see also Antonin Scalia, The Rule of Law as a Law of Rules,
56 U. CHI. L. REV. 1175, 1179 (1989).
This last point suggests another obvious advantage of establishing as
soon as possible a clear, general principle of decision: predictability.
Even in simpler times uncertainty has been regarded as incompatible
with the Rule of Law. Rudimentary justice requires that those subject to
the law must have the means of knowing what it prescribes. It is said
that one of emperor Neros nasty practices was to post his edicts high on
the columns so that they would be harder to read and easier to
transgress. As laws have become more numerous, and as people have
become increasingly ready to punish their adversaries in the courts, we
can less and less afford protracted uncertainty regarding what the law
may mean. Predictability, or as Llewellyn put it, reckonability, is a
needful characteristic of any law worthy of the name. There are times
when even a bad rule is better than no rule at all.
Id. (internal citations omitted).
hard case may engage in interpretive judgments of political morality

without threatening Liberal legality.24 These judgments, he insists, do not
appeal to their personal interests or to the interests of some group to which
they are connected.25 And even Kelsen believed that, although every case
calls for an exercise of judicial discretion, the legal materials place a frame
around the limits of permissible grounds for decision. The dimensions of
the frame vary from case to case, but he concedes that, while the frame is
sometimes wide enough to include troubling, ideological discretion, other
times it is not.26 Thus, the accusation that a judge is ideologically motivated
is a specific kind of criticism, one that does not concern banal societal
belief systems.
More particularly, what is meant by ideology here is most similar to
the definition espoused by Duncan Kennedy. Kennedy describes ideologies
as projects of an intelligentsia that knowingly acts to assist a group that has
an interest in conflict with another group or groups.27
One is an ideologist because one has made a commitment to
working within a complex body of texts, a discourse, and
accepted the blinders and limitations that inevitably go along
with the advantages of such a commitment, and because the
commitment to the texts goes along with, and sometimes
conflicts with, a commitment to a group or groups in conflict
with others.28
He further describes ideologized group conflict, which occurs when
the party or parties to the suit operate, whether they want to or not, as the
stand-in for a group.29 Thus, judges in such cases are presented with
opportunities to be ideologically-driven; they can sort out the stakes of the
ideologized group conflict.
Accordingly, even if Goodridge could have been foreseen to be a hard
case, and it very well could have been, more work would be necessary to
provide support for the notion that Justice Sosman would act on an
ideological basis, let alone that she would side with the appellants. She and
the other justices had further conceivable options. For instance, there was
the possibility that they would base their decisions upon evaluative
24. See generally RONALD DWORKIN, LAWS EMPIRE 276-312 (1986) (discussing
interpretivist method in connection with common law).
25. Ronald Dworkin, Keynote Address: Rawls and the Law, 72 FORDHAM L. REV. 1387,
1396 (2004).
26. KELSEN, supra note 21, at 246-49.
27. DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION: FIN DE SIECLE 39-42 (1997).
28. Id. at 42.
29. Id. at 41-42.
commitments that do not qualify as ideological, such as judicial norms of

interpretation or principles that have not yet been used to support a side
within a group conflict.
What kind of work must be done? I turn now, to the means for
making a case that Justice Sosman would act ideologically.
C. The Means for Gathering Evidence in Support of the Prediction

of Ideological Motivation
Because we must first make the predictors position as strong as
possible, we ought to scour the legal literature for support; we must find
rigorous examples of claims that bear a family resemblance to the claim
here. Fortunately, there is a prominent school in the legal academy that is in
the business of illustrating the impressive strength of ideology as a
predictor of legal outcomesAttitudinalism.30
In its most extreme form, Attitudinalism is the belief that judges
decide cases based upon their personal ideological preferences regardless
of the strictures posed by legal materials, stare decisis, recognized canons
of construction, and the like.31 Weaker, more popular versions concede that
other factors may be significant, but Attitudinalists of all stripes agree that
ideology is of primary importance. They support their viewpoint with
empirical findings; typically they first devise a model of judicial attitude
based upon the salient personal ideological characteristics of judges (or
proxies therefore) and then run that model through databases that include
important encoded data about cases.32 Attitudinalism has become a
30. See Gregory C. Sisk & Michael Heise, Judges and Ideology: Public and Academic
Debates About Statistical Measures, 99 NW. U. L. REV. 743, 744 (2005). (Scholars who use
empirical methods to study the behavior of judges long have labored in relative obscurity,
unknown outside of academic circles (and indeed they only recently have emerged into the
mainstream of the legal academy). However, the seclusion of the ivory tower has been
breached, as public attention has become increasingly focused upon studies that suggest the
influence of ideological or partisan variables on the outcomes of court cases.) (internal
citations omitted); cf. supra at p.2 (discussing attitude view).
31. See, e.g., JEFFREY A. SEGAL, HAROLD J. SPAETH, & SARA C. BENESH, THE SUPREME
COURT IN THE AMERICAN LEGAL SYSTEM 21 (2005) (Alternatively, consider an extralegal
model, which holds that Supreme Court justices, and to a lesser extent other judges, base
decisions on their sincere policy preferences.); Sanford Levinson, Some Reflections on
Professional Responsibility and Judicial Accountability, 1 U. ST. THOMAS L.J. 447, 459
(2003) (Among political scientists, in whose community I am also professionally trained,
this can lead to what has come to be called attitudinalism, an approach that, at an extreme,
leads to the argument that it is only policy preferences of individual judges that explain their
votes.) (citations omitted).
32. See, e.g., GLENDON SCHUBERT, THE JUDICIAL MIND 38 (1965) (the first elaborate
attitudinal model); JEFFREY A. SEGAL, THE SUPREME COURT AND THE ATTITUDINAL MODEL
household name in the legal academy, and its findings have informed the
formation of an emerging movement known as New Legal Realism.33 And
while Attitudinalisms claims are not easily listed, some bear a resemblance
to those that are associated with the more cynical moments of American
Legal Realism.34 One such claim is that the reasoning in judicial opinions is
a cloak for judges underlying policy desires.35 To be sure, the Realists
generally focused upon the factual contexts that they believed served as
stimuli for judicial responses rather than upon those factors that might
betray an individual judges personal ideology.36 Still, it is fair to say that
both the Realists and the Attitudinalists focused upon the large role that
non-legal reasons play in legal outcomes. Here, we will be scouring the
Attitudinalist and related literature to determine the degree of support that
there is for the Sosman prediction.
221-60 (1992); Jeffrey A. Segal & Albert D. Cover, Ideological Values and the Votes of the
U.S. Supreme Court Justices, 83 AM. POL. SCI. REV. 557, 557-65 (1989).
33. See, e.g., ROBERT A. CARP & RONALD STIDHAM, JUDICIAL PROCESS IN AMERICA 349-
51 (5th ed. 2001); Lee Epstein, Introduction to Part IV: The U.S. Supreme Court in
CONTEMPLATING COURTS 247-50 (Lee Epstein ed., 1995); Stephen M. Feldman, The Rule of
Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme
Court Decision Making, 30 LAW & SOCIAL INQUIRY 89, 89-90 (2005); Thomas J. Miles &
Cass R. Sunstein, The New Legal Realism (John M. Olin Law & Econ. Working Paper
Series, Paper No. 372, 2007), available at http://www.law.uchicago.edu/files/372.pdf.
34. The American Legal Realist most often cited in this regard is Jerome Frank. See
JEROME FRANK, LAW AND THE MODERN MIND 1-47 (4th prtg. 1936) (1930) (describing the
pervasiveness of the basic legal myth that law can be entirely predictable). Like the
Attitudinalists, Frank believed during at least one point in his life that a psychological model
of judicial decision making, one that took into account judicial attitude and personal drive,
would provide a better account of judging. See id. at 100-17 (analyzing the act of judging
from a psychological perspective); see also Frederick Schauer & Virginia J. Wise, Legal
Positivism as Legal Information, 82 CORNELL L. REV. 1080, 1097 (1997).
Put differently, by offering an account of the motivation behind legal
decisionmaking that explicitly denied the importance of sources unique
to the legal system, [Frank] was, in effect, denying the idea of legal
decisionmaking as limited domain. Even when put in terms of policy
rather than psychological motivations, as it was by other Realists, or in
terms of ideology, as is common within Critical Legal Studies, the same
structural feature recursthe claim is that the sources on which judges
actually rely, the real inputs into their decisions, are sources not unique
to the legal system.
Id.
35. Sean Wilson, The Attitudinal Model, Political Science, Ecological Fallacy and
Exaggeration 2 (Aug. 3, 2006), (unpublished manuscript), available at http://ssrn.com/
abstract=922183 (describing the foundational scholarship in the Attitudinalist movement).
36. LEITER, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, in
NATURALIZING JURISPRUDENCE, supra note 1, at 16.
Because we will ultimately test whether the Attitudinal-based

prediction is the weightiest, we ought briefly to discuss the rival
approachthe Legal Model. This model is drawn from a commonly held
viewpoint among legal practitioners, according to which judges decide
cases through systematic application of the external, objective sources of
authority that classically comprise the law.37 In contrast to the other
models, the most extreme view under the Legal Model is that the
articulated basis for a legal decision is the actual basis. This is a faithful
and charitable position; judges are acting in good faith when they state, as
they often do, that they have impartially and rationally applied the law to
the facts of the case.38 In its softer form, the goal of testing the Legal Model
is simply to establish the degree to which the legal materials are a predictor
of case outcomes. Either way, this is a tricky business, particularly if one
seeks a reliable empirical test. A considerable amount of conceptual
spadework is necessary to reach a satisfactory model of the truly legally
determined case, one that would provide a means for analyzing a wide
swath of cases and judges. Because of their (excusably) blinkered view of
legally-motivated judging, it could be argued that these studies fall short of
declaring a winner in the law vs. ideology debate. No matter, they remain
illuminating on many other scores.
While this Article takes some inspiration from the Legal Model, it is
not employed here. Our purposes are more humble, a fact that affords us
greater liberty. We need not be concerned with creating a robust legal
model, nor need we generate quantitative results. Rather, our focus is a
single case and a single justice. Thus, this Article will adopt a somewhat
looser legal model. For our purposes, any prediction that is based upon a
straightforward readingone that accepts the analysis at face valueof
legal sources is a legally-modeled prediction. In doing so, we adopt an
agnostic stance on the question of whether the ultimate decision in
Goodridge had a correct legal outcome or that an analysis of the law using
the typical interpretive tools of the legal practitioner would provide a right
answer to the legal issue. That is, we are not attempting to analyze what
37. Frank B. Cross, Decisionmaking in the U.S. Circuit Court of Appeals, 91 CAL. L.
REV. 1457, 1462 (2003).
38. There can be little doubt that judges are most fond of the Legal Model, but there is
no reason to think that the legal materials will always indicate that judges have not acted
ideologically. Just as the Strategic Model might show strategic thinking that is not
ideological, the Legal Model might indicate that the judge has, on a legal basis, acted
ideologically. Thus, the distinction between these models is somewhat nebulous, and it is
certainly possible that in our effort to bolster the position of our adversary, we could find
ammunition in the legal materials, but it is unlikely that we would find devastating
evidenceit is not ordinarily the case that legal authorities overtly direct judges to act
ideologically.
precedent dictates, as the justices in Goodridge were asked to do, we are

instead looking at legal materials that relate to the issues raised in
Goodridge and which provide some indication of what Justice Sosman
would do. In short, this Article will focus on antecedent SJC decisions that
both involved Justice Sosman and were germane to the issues raised in
Goodridge.
III. MAKING THE BEST CASE FOR THE PROGNOSTICATORS

In this section, our primary resource will be the empirical literature in
the Attitudinalist vein. The following will analyze each factor offered by
the prognosticators and thereafter will consider a few more supplementary
factors.
A. Gender
The simple question is whether there is literature that lends credence
to the notion that Justice Sosmans gender made it more likely that she
would side with the Goodridge appellants.39
There is a wealth of literature on this subject, and many of the studies
lend support. Jennifer L. Peresies study, completed while she was still a
law student, found that the gender of the judges on federal appellate panels
mattered to the outcomes in Title VII sexual harassment and sex
discrimination cases, both of which are clearly gender-related.40
Although plaintiffs lost in the majority of cases in my data set,
they were significantly more likely to win when a female judge
was on the bench. This effect was independent of [partisan
political] judicial ideology the presence of both liberal and
conservative female judges increased the probability that
plaintiffs prevailed on panels of varying ideological
composition.41
Indeed, she observed in a data set with fifty-four female judges that
39. It could certainly be argued that gender is at least once removed from ideology, so
we are not really isolating the root motivation. Be that as it may, we need not split hairs.
Regardless of whether her gender betrays a feminist ideology, a biological disposition, or
anything else, it is enough for our purposes that gender could reasonably be thought of as a
proxy for ideology. Cf. Michael Heise, The Past, Present, and Future of Empirical Legal
Scholarship: Judicial Decision Making and the New Empiricism, 2002 U. ILL. L. REV. 819,
834-39 (2002) (discussing distinction between Behavioralist Model and Attitudinalist
Model).
40. Jennifer L. Peresie, Note, Female Judges Matter: Gender and Collegial
Decisionmaking in the Federal Appellate Courts, 114 YALE L. J. 1759, 1768-87 (2005).
41. Id. at 1787.
panels with at least one female judge decided cases for the plaintiff more
than twice as often as did all-male panels. A similar study of nonconsensual
sex discrimination cases (cases in which there was a dissenter or reversal
and, therefore, the perspectives of the judges would presumably play a
greater role) in the federal appeals courts over nearly two decades reached
similar results.42 In particular, Nancy Crowes study found that Democrat-
appointed white female judges and Democrat-appointed African-American
judges were the most likely to cast a vote in favor of a sex discrimination
plaintiff, doing so 90% and 93% of the time, respectively; whereas the
male version of the same voted for the plaintiff 76% of the time. On the
Republican-appointed side, white female judges voted for the plaintiff 53%
of the time, African American judges did so 61% of the time, and white
male judges did so the least frequently, only 28% of the time.43 Gender
effects have also been found in divorce cases and in custody disputes.44
But what of rulings in gay rights cases? Gender-based judge studies in
that context are difficult to come by, but we are not rudderless. Daniel
Pinellos impressive study of nearly 400 gay issues cases in federal and
state appellate courts found that female judges were about 12% more likely
to favor gay litigants in all essential gay rights cases and were about 21%
more likely to do so when they sat on courts of last resort.45 Further, poll
data shows that there is some gender disparity on the very issue of same-
sex marriage, although it is not great. According to an ABC
News/Washington Post poll, involving 1,036 adults (three-point error
margin) from only a few months after the Goodridge decision was issued,
59% of men say same-sex marriage should be illegal, compared with 51%
percent of women. On civil unions, the gap is somewhat larger: 57% of
men opposed same-sex civil unions and only 45% of women did.46
42. See Theresa M. Beiner, Diversity on the Bench and the Quest for Justice for All, 33
OHIO N.U. L. REV. 481, 484-85 (2007) (citing Nancy E. Crowe, The Effects of Judges Sex
and Race on Judicial Decision Making on the United States Courts of Appeals, 1981-1996
(1999) (unpublished Ph.D. dissertation, University of Chicago)).
43. Id. at 485.
44. See Elaine Martin & Barry Pyle, Gender, Race, and Partisanship on the Michigan
Supreme Court, 63 ALB. L. REV. 1205, 1222-35 (2000) (discussing gender effect in divorce
cases before the Michigan Supreme Court); Vicki C. Jackson, What Judges Can Learn from
Gender Bias Task Force Studies, 81 JUDICATURE 15, 21 n.38 (1997) (discussing Florida
study and stating, [I]n contested custody appeals, all-male appellate panels were more
likely to rule in favor of male than female parent; before panels which included a female
judge, male and female litigants equally likely to prevail.).
45. See DANIEL R. PINELLO, GAY RIGHTS AND AMERICAN LAW 78 tbl.3.1, 80 tbl.3.2
(2003).
46. Poll, Most Oppose Same-Sex Marriage, But Balk at Amending the Constitution,
ABC NEWS/WASHINGTON POST, Jan. 21, 2004 [hereinafter Same-Sex Marriage Poll],
B. Age
Presumably, because it is popularly believed, [s]cholars have
hypothesized that individuals become more conservative over time, and
hence older judges would be more conservative than younger judges.47
Judge Sosman was fifty-two years old when Goodridge was argued. She
was thus well below the average age of a judge in the federal appellate
courts.48 She was also the youngest member of the court. There is some
evidence that supports the view that her relatively young age would make it
more likely that she would side with the Goodridge appellants.49 Sheldon
Goldmans seminal study of federal courts of appeals found that, generally
speaking, older judges were more conservative in a number of areas, such
as labor cases.50 Another study found that older federal trial judges imposed
harsher sentences on draft resisters between 1965 and 1972.51 Another
found that judicial age was a significant factor in the adjudication of intent
claims raised during race discrimination suits.52 We also see a distinction
between old and young with poll data on issues surrounding same-sex
marriage: 55% of eighteen to twenty-nine year olds favored legalization of
same-sex marriage; whereas only 21% of those sixty-five years old or older
favored legalization.53
available at http://abcnews.go.com/images/pdf/945a2GayMarriage.pdf.
47. Tracey E. George, Court Fixing, 43 ARIZ. L. REV. 9, 16 (2001).
48. RICHARD A. POSNER, AGING AND OLD AGE 182-83 n.5 (1995) ([I]n 1993 the
average age of federal court of appeals judges was 58.9 . . . .).
49. As with gender, it is not particularly important for our purposes whether age is a
proxy for the motivating ideology or that age relates to some other motivating drive.
50. See Sheldon Goldman, Voting Behavior on the United States Courts of Appeals
Revisited, 69 AM. POL. SCI. REV. 491, 499 & tbl.6, 500-01 & tbl.7 (1975).
51. See Herbert M. Kritzer, Political Correlates of the Behavior of Federal District
Judges: A Best Case Analysis, 40 J. POL. 25, 28, 49-50 (1978) ([T]he older the judge, the
harsher the sentence.).
52. See Theodore Eisenberg & Sheri Lynn Johnson, The Effects of Intent: Do We Know
How Legal Standards Work?, 76 CORNELL L. REV. 1151, 1189-90 tbl.4 (1991); Charles M.
Lamb, Exploring the Conservatism of Federal Appeals Court Judges, 51 IND. L.J. 257, 267-
70, 277 (1975).
A smaller number of studies have analyzed age at judicial appointment. The most famous
found that age of a judges appointment to the Supreme Court was related to his vote in
certain cases. See S. Sidney Ulmer, Social Background as an Indicator to the Votes of
Supreme Court Justices in Criminal Cases: 1947-1956 Terms, 17 AM. J. POL. SCI. 622, 625
(1973). Additional studies have concerned age effects on more innocuous behavior. See,
e.g., Deborah Jones Merritt & James J. Brudney, Stalking Secret Law: What Predicts
Publication in the United States Courts of Appeals, 54 VAND. L. REV. 71, 112 (2001)
(discussing how elevated age increased the likelihood of publication of opinions).
53. Same-Sex Marriage Poll, supra note 46.
C. Views on Abortion
One aspect of the reasoning of those making the prediction is the
supposition that Justice Sosmans membership on the board of Planned
Parenthood of Massachusetts is a sign that she had a progressive ideology
with respect to sexual issues and, in turn, that she would be more likely to
side with the progressive positionthat of the appellantsin Goodridge.
Unsurprisingly, there are few, if any, scientific studies confirming that
membership in that organization could be predicted to have an effect. Still,
there is some empirical support for their reasoning. Poll data shows that a
much higher proportion of pro-choice individuals favor same-sex marriage
compared to pro-life individuals.54
D. Womens Bar Association Membership/All-female Law Firm

The theory here is that these factors indicate a progressive, feminist
ideology. There are few if any scientific studies showing how membership
in the WBA and the founding of an all-women law firm influences case
outcomes that relate to same-sex marriage. Still, there is some support.
54. Although they are from after the Goodridge decision, Rasmussen Reports Polls lend
support.
Pro-Choice voters are evenly divided on the topic of same-sex
marriage48% favor the traditional definition of marriage as a union
between one man and one woman while 44% are opposed to that
definition. Pro-life voters overwhelmingly support the traditional
definition of marriage. Among all voters, 66% favor the traditional
definition of marriage while 28% are opposed. Fifty-two percent (52%)
of voters say they are pro-choice while 41% are pro-life. Combining
these two hot-button social issues, 36% of voters are pro-life and favor
the traditional definition of marriage. Twenty-five percent (25%) are
pro-choice and favor the traditional definition of marriage. Twenty-three
percent (23%) are pro-choice and oppose the traditional definition of
marriage.
Rasmussen Reports Poll, July 13, 2005 [hereinafter Rasmussen Poll 2005], available at
http://legacy.rasmussenreports.com/2005/Abortion%20and%20Same%20Sex%20Marriage.
htm.
From a political perspective, one of the more significant findings is that
pro-Life voters are overwhelmingly opposed to same-sex marriage.
However, those who are pro-Choice on the issue of abortion are divided
on the issue of same-sex marriage. As a result, 40% of voters are both
pro-Life and opposed to same-sex marriage. Just 27% are both pro-
Choice and supportive of same-sex marriage.
Rasmussen Reports Poll, Nov. 9, 2004, available at http://rasmussenreports.com/
public_content/politics/issues/55_said_same_sex_marriage_issue_important.
1. Womens Bar Association

While the connection in this regard is attenuated, it was clear on the
eve of Goodridge (and since) that the Massachusetts WBA is sympathetic
to gay rights causes, including same-sex marriage. Indeed, the group
submitted an amicus brief in Goodridge. Since then, it has opposed state
executive branchs effort to push the legislature to pass something less than
same-sex marriage,55 and most recently the group has opposed the initiative
to amend the state constitution so that it defines marriage as between a man
and a woman.56
2. All-female Law Firm

It is of little surprise that I was unable to uncover any studies that
considered the effect of founding an all-female law firm. There was some
indication, however, that employment in private practice might have an
effect. Peresies study found that, even though prior military service,
government service, a prior judgeship, and employment as a law professor,
among others, were not significant factors, employment in private practice
(in a firm, as a solo practitioner, or in a corporation) was. Previous work
in private practice increased the likelihood that female judges decided for
sex discrimination plaintiffs but had no statistically significant effect for
male judges.57 Although she admitted that this finding of significance
might be an artifact of the data rather than an indicator of a true
phenomenon.58 Also lending some support to this factor is a study
comparing housewives to part-time and full-time working women over the
span of 1972-1986, the results of which showed differences in attitudes on
sexual issues. In general, the largest attitudinal differences . . . occurred
between full-time wives and housewives on those items directly related to
appropriate gender roles in the family and the impact of mothers
employment on children. The most rapidly growing differences, however,
occurred on the sexuality and abortion items.59
55. Raphael Lewis, Romney, AG Take Heat on Marriage Issue, BOSTON GLOBE, Nov.
22, 2003, available at http://www.boston.com/news/local/massachusetts/articles/
2003/11/22/romney_ag_take_heat_on_marriage_issue (joining several gay rights groups,
Boston Bar Association and former state attorney general James M. Shannon in effort).
56. Womens Bar Foundation of Massachusetts, Other Areas of Special Concern,
http://www.womensbar.org/WBA/ini_special.aspx (The WBA supports full
implementation of the Goodridge decision on same sex marriage and removing barriers such
as the 1913 anti-miscegenation law.).
57. Peresie, supra note 40, at 1774.
58. Id.; see also Lee Epstein et al., The Norm of Prior Judicial Experience and Its
Consequences for Career Diversity on the U.S. Supreme Court, 91 CAL. L. REV. 903 (2003).
59. Jennifer Glass, Housewives and Employed Wives: Demographic and Attitudinal
E. Comfort with deciding policy issues

According to one article, Justice Sosman cited the SJCs role in
decid[ing] important policy issues as a reason possibly to aspire to a
higher court some day. This, the article tacitly suggests, evinced her view
that one of the institutional roles for the court is to settle such issues and
that she would embrace that role if made a justice.60 In turn, the reasoning
goes, she would be more wiling to decide in favor of the Goodridge
appellants. While this is arguably a non sequitur, it might be claimed that
those who are uncomfortable with court policymaking are most likely to
side with the status quo; whereas those who are comfortable with it would
be less inclined to side with the status quo when given a chance. Under this
reasoning, since the Sosman quote indicates her comfort with such
policymaking, she would be more inclined to make a change in policy by
siding with the Goodridge appellants regardless of countervailing social
and institutional pressures. This is a bit of a stretch.
Still, there are indications that Justice Sosman would not make
concessions due to outside pressure when faced with controversial public
policy issues. Most notably, she sided with the majority in Bates v.
Director of the Office of Campaign and Political Finance, a divisive case
in which the court ruled that the legislature must fund the Massachusetts
Clean Elections Law, a statute passed by public initiative which allotted
public campaign funding to those candidates for Massachusetts offices who
agreed to limit the amount and sources of private campaign contributions
they could accept.61 Many believed that the decision would place the SJC
in a precarious position with the legislature, and yet the SJC soldiered on,62
giving Justice Sosman the task of executing the decision as a single
justice.63
Change, 1972-1986, 54 J. OF MARRIAGE AND THE FAMILY 559, 563 (1992).

60. See supra note 13.
61. 763 N.E.2d 6 (Mass. 2002).
62. See, e.g., Emily Bazelon, A Bold Stroke, LEGAL AFFAIRS, May-June 2004, at 30, 38
(Adding urgency to the dissenters fears was Goodridges unspoken backdrop. Both the
SJC and the statehouse were still smarting from a debilitating power struggle over a Clean
Elections law passed by the voters as a ballot initiative in 1998. In her boldest decision
before Goodridge, Marshall had jettisoned political expediency, especially the part of the
chief justices job that requires her to get along with the legislature.).
63. Bates v. Sullivan I, No. SJ-2001-0448 (Sup. Jud. Ct. Suffolk Cty. Mar. 12, 2002)
(Memorandum of Decision and Order on Plaintiffs Motion for Further Relief to Satisfy
This Courts Judgment), available at http://www.nvri.org/library/cases/massachusetts/
mass_sjc_memo_3_12_02.pdf; Bates v. Sullivan II, No. SJ-2001-0448 (Sup. Jud. Ct.
Suffolk Cty. Apr. 5, 2002) (Memorandum of Decision and Order on Plaintiffs Emergency
Motion for a Levy on Property of the Commonwealth), available at
http://www.nvri.org/library/cases/massachusetts/Mass_memo_emergency_motion.pdf.
The Boston Globe wrote:

For the third time in as many weeks, the SJC will be asked today
to overrule the Legislatureand more specifically, Finnerans
leadership. Its uncharted territory for a court that tries to hover
above politics, and if the states highest court takes on the states
most powerful and controversial political figure, it could have
lasting consequences for the judicial branch.
....
Last month, Finneran fired a shot across the bow of judicial

activism, suggesting that if the SJC usurps legislative power by
appropriating money, it may be time to force judges to stand for
election in Massachusetts, rather than be appointed by the
governor.64
Thus, there is some support for the notion that the court, Justice
Sosman included, had an aggressive view of the judiciarys role vis--vis
the legislature, a factor that might influence its decision under rational basis
scrutiny.
64. Rick Klein, Risks Lurk in SJCs Clash with Legislature Some See Justices
Overstepping Bounds, BOSTON GLOBE, Mar. 11, 2002, at B1, available at 2002 WLNR
2578435.
F. Other Factors65
Although the aforementioned factors were drawn from published
materials, a bit of digging turns up further factors that might strengthen the
prognosticators case. One avenue to pursue is to identify those instances in
which Justice Sosmans decisions stirred up the political pot. This section
will analyze Sosmans decisions through that lens, looking not for
precedent that would affect the decision in Goodridge, but for any
indication that the decision, whether in its language or its effect, provides
evidence of her personal ideology. There are a few cases in which Sosman
went against conservative positions, perhaps indicating that she had a
countervailing ideology.
As a Superior Court judge, Sosman was accused of anti-Catholic bias
after she ruled that the Archdiocese of Boston had cheated Brookline
developer Norman Levenson in a 1991 real estate deal and then ordered the
Archdiocese to pay him $3.4 million. In a Boston Globe article about a
Catholic cardinals letter to then-governor Paul Cellucci concerning
possible anti-Catholicism, the author noted,
[t]he allegation of judicial bias against the Roman Catholic
establishment flared last December, when Superior Court Judge
Martha Sosman ordered the archdiocese of Boston to pay $4.3
million to a developer, Norman Levenson . . . .
65. It barely deserves mention that some might have inappropriately drawn conclusions
about Justice Sosmans sexual orientation from the fact that she was unmarried. Clearly,
there was insufficient evidence to draw such conclusions on the eve of Goodridge, and
Justice Sosman, herself, made it clear since Goodridge that those conclusions were wrong.
Even if we were to allow them their mistaken view, it is not clear that it would provide a
sound basis for their prediction. Indeed, sexual orientation can be a poor predictor even in
contexts where common sense would suggest otherwise. See, e.g., Leslie A. Hayduk, et al.,
Sexual Orientation and the Willingness of Catholic Seminary Students to Conform to
Church Teachings, 36 J. SCIENTIFIC STUD. RELIGION 455, 455-67 (1997). The authors
conducted an investigation of causes and effects surrounding seminarians willingness to
subjugate themselves to church teachings in which they utilized a structural equation model
based on data from 203 Catholic seminarians about their sexual orientation, their
willingness to subjugate themselves to the church, and their acceptance of traditional
teachings and concluding that
[s]exual orientation has no appreciable impact on willingness to
subjugate oneself to church teachings, and no impact on whether the
seminarians support a reform role for the church. The more the
seminarians view their faith as mystical, and the more strongly they
agree that Jesus Christ is God humbled, the more they are prompted to
subjugate their personal views to church teachings.
Id. at 455.
Judge Sosmans ruling castigated archdiocesan officials and

raised eyebrows all over the legal and development communities
for her condemnation of unfair, immoral, unethical, and
unscrupulous acts.
....
Sosman is not up for confirmation for anything, but if she were,

she would undoubtedly face a hostile reception off her attack on
the church after completion of a successful elderly and AIDS
housing package.66
The accusation, when compounded with her role in Planned
Parenthood, might give the impression that her ideology was left of the
aisle.
More ammunition appears in Blixt v. Blixt,67 a case upon which
Justice Sosman sat while serving on the SJC. There, the court upheld a
maternal grandfathers right to visitation of a child born out-of-wedlock
pursuant to the Commonwealths grandparent visitation statute,68 and over
66. David Nyhan, Cardinal Law on the SJC, BOSTON GLOBE, Sept. 29, 1999, at A23,
available at 1999 WLNR 2466830.
67. 774 N.E.2d 1052 (Mass. 2002).
68. MASS. GEN. LAWS ch. 119, 39D (2006).
If the parents of an unmarried minor child are divorced, married but
living apart, under a temporary order or judgment of separate support, or
if either or both parents are deceased, or if said unmarried minor child
was born out of wedlock whose paternity has been adjudicated by a
court of competent jurisdiction or whose father has signed an
acknowledgement of paternity, and the parents do not reside together,
the grandparents of such minor child may be granted reasonable
visitation rights to the minor child during his minority by the probate
and family court department of the trial court upon a written finding that
such visitation rights would be in the best interest of the said minor
child; provided, however, that such adjudication of paternity or
acknowledgment of paternity shall not be required in order to proceed
under this section where maternal grandparents are seeking such
visitation rights. No such visitation rights shall be granted if said minor
child has been adopted by a person other than a stepparent of such child
and any visitation rights granted pursuant to this section prior to such
adoption of the said minor child shall be terminated upon such adoption
without any further action of the court.
A petition for grandparents visitation authorized under this section shall,
where applicable, be filed in the county within the commonwealth in
which the divorce or separate support complaint or the complaint to
establish paternity was filed. If the divorce, separate support or paternity
the parents objection.69 Even under strict scrutiny analysis,70 the court
rejected the view that Section 39D unconstitutionally infringed the parents
fundamental right to make decisions concerning the care, custody, and
control of their child. Justice Sosman garnered public attention when she
dissented, finding the statute unconstitutional and accusing the majority of
applying a more deferential standard than that called for by strict scrutiny.71
She took the statute to task for failing, in her view, to acknowledge the
breadth of diversity in the family structure. She made special note of gay
and lesbian parents:
Essentially all parents raising children in nontraditional families
are pulled into this statutory scheme. Many gay and lesbian
couples raising children will be subject to this form of judicial
interference, as the gay or lesbian parent of the child is no longer
residing with the childs other biological parent. Divorced,
single, or widowed parents who move in with other family
members, and raise their children in an extended family, are
subject to complaints under the statute, as are all parents who
later live with or even marry someone other than a biological
parent of the child. And, by definition, any parent who is raising
his or her child single-handedly is subject to such proceedings.
Rather than recognize the wealth of diversity in todays
American family, this statute casts a slur on the parenting
abilities of anyone whose family living arrangements deviate
from the traditional, nuclear family consisting of father, mother,
and their biological children.
....
The first mistaken assumption in the courts analysis is the

assumption that the category of parents who were never married
and are now living apart describes a category of households in
which children are raised by single parents. It does not. The
custodial parent can be living with or married to another adult,
and that other adult may well have become a de facto parent or
even the childs legal parent by way of adoption, yet the statute
still applies. These are not single-parent homes, nor are they
judgment was entered without the commonwealth but the child

presently resides within the commonwealth, said petition may be filed in
the county where the child resides.
Id.
69. See Blixt, 774 N.E.2d at 1066.
70. See id. at 1059.
71. See id. at 1066-67 (Sosman, J., dissenting).
homes that place a child at greater risk of harm from denial of

grandparents visitation. Are we to assume that children living
with gay or lesbian couples are especially vulnerable to real
harm, merely because they are not living with both of their
biological parents?72
This language, the predictors could plausibly argue, indicates that
Sosman is even more willing than her fellow justices to consider the
interests of same-sex parent couples.
In another case, Sosman, made the papers when, sitting as a single
justice, she reversed a Springfield District Court decision concerning
whether criminal defendants must reveal their HIV status.73 When arresting
a suspect, Springfield police had been exposed to the suspects blood.
Thereafter, the officers had to choose whether to take potentially hazardous
medication as a prophylactic measure. Two officers sought to compel the
suspect to reveal whether he was HIV positive before making their
decision. In defense, the suspect invoked his Fifth Amendment rights,
fearing that the results might affect the charges against him. The
Springfield District Court granted the states motion, but ordered that the
information the suspect revealed not be used in determining how to charge
him.74 The suspect appealed, and Sosman reversed, noting that the
informed consent statute provides that any HIV testing requires written
informed consent from the patient, and that health care providers are
forbidden from revealing the results of HIV testing to anyone other than
the person tested absent that persons written informed consent.75 [A]s
worded [the statute] . . . provides absolute confidentiality for HIV testing.
Sosman disagreed with the states contention that the statute applied only to
health care providers. She found nothing in the legislative history to read in
an exception. She further noted that the argument failed to recognize that
health care providers would be used to test the suspect anyway. Requiring
him to disclose those test results is no different than requiring a health care
provider to disclose those results.76
Supporters of gay rights considered the decision a victory.77 Thus, it
72. Id. at 1079-80 (citations omitted).

73. Commonwealth v. Ortiz, No. SJ-2001-0055, 2001 WL 34129741, at *1 (Mass. Feb.
15, 2001); see also David Weber, Judge: Suspect Doesnt Have to Reveal HIV Status,
BOSTON HERALD, Feb. 16, 2001, at 3, available at 2001 WLNR 277354.
74. Ortiz, at *1.
75. Id. at *2 (citing MASS. GEN. LAWS ch. 111, 70F (2000)).
76. Id. at *2-4.
77. Weber, supra note 73, at 3 (Bennett H. Klein, an attorney for Gay and Lesbian
Advocates and Defenders (GLAD), applauded Sosmans ruling, saying absolute
confidentiality is a crucial factor in persuading many people to undergo HIV testing.
might be argued that this is another indication that Sosman was

sympathetic to the gay cause; she sided with their point of view in a
difficult and controversial case involving protection of the police.
IV. EVALUATING THE EVIDENCE IN SUPPORT OF THE PREDICTION

Having put the predictors best foot forward, it is time to take into
account countervailing evidence. First, we will determine whether the
Attitudinalist literature, itself, contains such evidence. In short, we will
employ the same methodology that we have already employed but
searching this time for cases that might weaken the predictors position.
This will give us a better sense of its strength.
When earlier studies are taken into account, the case for gender
weakens. Generally, these studies found little influence on case outcomes,78
and those few effects identified would not inure to the benefit of
progressives.79 And while more recent studies are admittedly more
germane, the fact that the results of similar studies are in contradiction,
especially when all of them took place within a relatively short span of
years, signals a red flag that the findings in this vein might be highly
Because of the stigma and discrimination associated with HIV, the privacy of HIV status
has been critical to encouraging individuals to come forward for testing, counseling and
care.).
78. Carol T. Kulik et al., Here Comes the Judge: The Influence of Judge Personal
Characteristics on Federal Sexual Harrassment Case Outcomes, 27 LAW & HUM. BEHAV.,
69, 73 (2003) (Unfortunately, studies examining judge gender and race in discrimination
and harassment cases have thus far yielded weak and inconsistent results. . . . Walker and
Barrow (1985) studied 12 matched male/female pairs of district court judges and found no
differences between male and female judges in their decisions on womens rights issues
(including gender discrimination, maternity rights, equal employment rights, and
reproductive freedom).); Donald R. Songer et al., A Reappraisal of Diversification in the
Federal Courts: Gender Effects in the Courts of Appeals, 56 J. POL. 425, 436 (1994)
(discussing the lack of gender influence on outcomes in obscenity cases).
79. Herbert M. Kritzer & Thomas M. Uhlman, Sisterhood in the Courtroom: Sex of
Judge and Defendant in Criminal Case Disposition, 14 SOC. SCI. J. 77, 86 (1977) (noting no
difference between male and female judges in criminal sentencing and suggesting that this
might be due to shared socialization experiences of judges); John Gruhl et al., Women as
Policymakers: The Case of Trial Judges, 25 AM. J. POL. SCI. 308, 319-20 (1981) (finding
that women judges generally did not convict and sentence defendants differently but noting
that they were more likely to sentence female defendants to prison); Thomas G. Walker &
Deborah J. Barrow, The Diversification of the Federal Bench: Policy and Process
Ramifications, 47 J. POL. 596, 614 (1985) (female judges tended to be less supportive of
personal rights claims and minority policy positions and more sympathetic to economic
regulation and they also displayed a pattern of deferring to positions taken by the
government).
context-contingent. 80 Thus, one cannot simply substitute these findings in

the context of same-sex marriage in 2003. The problem is compounded
here because the poll data, which is most directly applicable to context of
Goodridge, fails to provide much support. Indeed, it does not show that a
majority of women support legalization and therefore does not offer strong
support for the prediction that a female judge will find for the Goodridge
appellants.81
Age is an even weaker factor. One of the problems with using age as
a predictor in this instance is that it is difficult to know whether Justice
Sosman was young enough to make siding with the Goodridge appellants
the most likely outcome. She was young but not so young that a majority of
individuals her age supported same-sex marriage.82 Thus, even if her age
made her more likely than her peers to rule in favor of legalization, it did
not clearly make her likely to do so. Besides, the weight of authority in the
Attitudinalist literature does not support the notion that age is a reliable
predictor.83 Lastly, even the literature marshaled in support of the
80. Martin & Pyle, supra note 44, at 1218-20, 1236 (discussing fact that 1990s studies
of gender effect in judiciary contradict earlier findings and speculating that this might be a
result of the profile of women selected by the appointing president, and further finding that,
[d]espite the central finding of gender differences in judicial voting in Divorce cases in the
present case study of the Michigan Supreme Court, some of the other findings are at odds
with previous research. Party affiliation was a better predictor of judicial voting than gender
in two of the three issue areas drawn loosely from other studies. However, the impact of
party affiliation on judicial voting in state high courts is well established and comes as no
surprise.); see also Paula A. Monopoli, Gender and Justice: Parity and the United States
Supreme Court, 8 GEO. J. GENDER & L. 43, 51 (2007) (While the research on the impact of
gender on case outcomes has been somewhat mixed, recent studies have demonstrated a
statistically significant connection between women sitting on the bench and outcomes in
cases that are of particular importance to women, such as Title VII cases.).
81. See Same-Sex Marriage Poll, supra note 46. But cf. Frank Phillips, Support for Gay
Marriage Mass. Poll Finds Half in Favor, BOSTON GLOBE, Apr. 8, 2003, at A1, available at
2003 WLNR 3416699 (narrow 55% majority of Massachusetts women supported
legalization but 5% margin of error).
82. Same-Sex Marriage Poll, supra note 46 (showing that 55% of eighteen to twenty-
nine year olds favor legalization of same-sex marriage whereas only 21% of those sixty-five
or older favor legalization of same-sex marriage).
83. J. WOODFORD HOWARD, JR., COURTS OF APPEALS IN THE FEDERAL JUDICIAL SYSTEM
106 (1981) (In examining indicators of support for civil rights among 5th circuit judges
birthplace, age, party affiliation, and the likeMary H. Curzan found only one positive
correlation: geographic mobility in work experience.); George, supra note 47, at 17 (On
balance, the studies suggest that age is of minimal value in predicting how judges will vote,
particularly once other variables are considered.) (citing Orley Ashenfelter et al., Politics
and the Judiciary: The Influence of Judicial Background on Case Outcomes, 24 J. LEGAL
STUD. 257 (1995) (noting that age did not influence the probability of settlement)); Beverly
Blair Cook, Sentencing Behavior of Federal Judges: Draft Cases1972, 42 U. CIN. L. REV.
prediction has weaknesses. One of the studiesSheldon Goldmanshas

been criticized for failing to control for party identification, thus indicating
that it might be the appointing president rather than age that is responsible
for the differences.84 Similarly, the Eisenberg study only questionably
supports the prediction. The finding there was that, while age was a factor,
an increase in age made judges more likely to rule in favor of a Fourteenth
Amendment discrimination claim, a ruling which is debatably the more
liberal outcome.85 Thus, the conclusion arguably does more harm than good
for the predictors case. Lastly, the Kritzer study of sentences for draft
offenders is undercut by the results of a similar study that found that the
distinction between those over and under the age of sixty-five had no effect
on sentence severity for such offenses.86
There was scant evidence that views on abortion would make Justice
Sosman likely to side with the Goodridge appellants. In fact, the same
problem with the poll data rears its head here: according to that data, more
pro-choice individuals favor limiting marriage to its traditional definition
than support including same-sex couples.87 Likewise there is little evidence
that membership in the WBA is a relevant proxy here. It can be expected
that the WBA, which is large, houses a diversity of views and opinions. To
be sure, it is safe to assume that all members are committed to the WBAs
mission of fostering the full and equal participation of women in the legal
profession and in a just society, but it would do a disservice to the
membership to assume further that each and every member shares the
identical vision of a just society.88 Thus, it would be unwarranted to assume
597, 623-24 (1973) (explaining that whether the judge was younger or older than sixty-five
did not affect the severity of sentences given to draft offenders); Gregory C. Sisk et al.,
Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73
N.Y.U. L. REV. 1377, 1459-60 (1998) (Although early studies found a judges age to be
significant, even the best variable in accounting for variance in decision outcomes, more
recent empirical studies have seldom found age to be of value in explaining judicial
behavior.).
84. George, supra note 47, at 17.
85. See Eisenberg & Johnson, supra note 52, at 1189-90.
86. See Cook, supra note 83, at 623-24.
87. Rasmussen Poll 2005, supra note 54 (Pro-Choice voters are evenly divided on the
topic of same-sex marriage48% favor the traditional definition of marriage as a union
between one man and one woman while 44% are opposed to that definition.).
88. The WBAs mission statement states as follows:
The WBA is committed to the full and equal participation of women in the legal profession
and in a just society. The WBA believes that:
* A strong community of women lawyers is essential to the
administration of justice;
* The full and equal participation of women in society requires the
that any individuals membership in the group, Justice Sosman or

otherwise, is a predictor that she would rule in favor of legalization of
same-sex marriage. Besides, one study found that a judges prior
employment at a non-profit organization was not a significant predictor of
case outcomes.89
As to Judge Sosmans foundation of an all-female law firm, there can
be little doubt that the formation of Kern, Sosman, Hagerty, Roach &
Carpenter, which was the first law firm of its kind in the state, was a
courageous act, the sort that only those willing to buck the status quo and
challenge the ignorant can do. And surely it could be argued that those very
same traits would need to be possessed by those seeking to legalize same-
sex marriage in the Commonwealth. Even so, it would be foolhardy to
assume that the formation of the law firm would inexorably lead her to
share the ideology of the Goodridge appellants, let alone to lead her to side
with them in her capacity as a judge. At least one study has shown that
prior private practice experience is not a significant independent factor.90
Moreover, once one opens the inquiry into an individuals prior work
experience, there is a risk of cherry picking. There are so many factors
from which to choose. Looking at paid work alone, Justice Sosman served
as a trial judge, was an Assistant United States Attorney, worked at a major
law firm, and might have been paid for speaking engagements or for
playing the piano. Even in this incomplete list there are factors that militate
in the opposite direction than do the factors enumerated by the predictors.
For instance, trial judge experience has been shown to be significantly
elimination of all forms of discrimination;

* Both the legal profession and society at large benefit from valuing
and promoting diversity;
* Women lawyers face common challenges and can teach and learn
from one another;
* The individual and collective achievements of women lawyers should
be celebrated.
Womens Bar Association of Massachusetts, The WBA Mission Statement,
http://www.womensbar.org/WBA/mission.aspx (last visited Apr. 24, 2008).
89. See Peresie, supra note 40, at 1774.
90. Daniel M. Schneider, Using the Social Background Model to Explain Who Wins
Federal Appellate Tax Decisions: Do Less Traditional Judges Favor the Taxpayer?, 25 VA.
TAX REV. 201, 229-30 tbl. 4 & 238 (2005) (identifying tax cases finding no statistical
significance with private practice experience as independent variable, and noting that
[j]udges who could be predicted to decide in favor of the taxpayer in a statistically
significant manner or in a manner approaching statistical significance had a variety of
professional work experiences before becoming judges. . . . These associations also can be
explained by other, stronger associations appearing in the areas of race and education.).
related to conservative outcomes.91

Little need be said about Justice Sosmans comfort with deciding
policy issues. At best, this factor suggests that she would execute an
ideological agenda without fear if she had one, but it fails to establish that
she had that ideological agenda in the first instance.
Worse yet, the quote upon this position was based was taken out of
context. In an article discussing the likely vote of each SJC justice in the
then-upcoming Goodridge decision, Lawyers Weekly USA wrote, [i]n a
1994 interview with Massachusetts Lawyers Weekly, Sosman, then a
newly appointed trial judge, cited the SJCs role in decid[ing] important
policy issues as a reason to possibly aspire to a higher court some day.92
A review of that 1994 interview, however, shows that Sosman made little
more than a descriptive claim about appellate courts:
Q: Youve done some appellate work as a practitioner, would
you like to aspire to a higher court?
A: Not at this time. I did do appellate work and have great

respect to the [sic] for the appellate process and its important
role. But its role is completely different, obviously, from the trial
court. The front lines are in the trial court. There is no doubt
about that. If you want to have an immediate impact on the
quality of justice you have a greater impact in the trial court.
Albeit the appellate court sets important precedent, sets the
direction of development of the law and decides important policy
issues, [but] the immediate day-to-day impact is felt at this level.
And after just a little over one year I still have a lot to learn about
being a trial court judge.93
Likewise, even the suggestion that Justice Sosmans fondness for
deciding important policy issues is evident in her handling of Clean
Elections becomes less persuasive upon further inspection. While critics
suggested that she and the SJC might have overstepped the bounds of its
proper role in the Clean Elections case, a greater number of observers
arrived at precisely the opposite conclusion.94 Even certain of those who
91. Sisk et al., supra note 83, at 1383, 1477 (finding that prior experience as state or
local judge is a significant predictor that judge would uphold sentencing guidelines).
92. Supra note 13.
93. Claire Papanastasiou Rattigan, Bench Conference, Martha B. Sosman: Superior
Court, MASS. LAW. WKLY., May 2, 1994.
94. Harvey Silverglate, a Boston civil-liberties lawyer stated that
[r]ather than engage in what [he] calls a pitched battle, the court has
appeased the legislature. He points to the 2001 lawsuit over the Clean
Elections Law. Though the justices ruled that candidates were entitled to
believed that the case reflected a departure in the SJCs legislative

deference nevertheless stated that [n]o lines have yet been crossed,
however.95 And Justice Sosman, acting alone in her capacity as single
justice, took steps to limit the ruling in favor of funding the clean elections
law from going too far. She chastised the laws supporters for attempting to
create an unseemly media circus, and ruled against the sale of House
Speaker Thomas M. Finnerans furniture because it was intended to
humiliate, annoy, and embarrass these legislators in retaliation for their
opposition to the Clean Elections Law.96 A Boston Globe article added
that [c]onstitutional scholars said that Sosmans ruling reflects the courts
delicate approach to this case.97 Thus, even the Clean Elections situation
was not an indicator that Judge Sosman had a tendency to take an
aggressive position vis--vis the legislature.
What remains are the supplementary factors. In keeping with the
theme, we will look a bit closer at those cases already discussed to
determine whether there is a counter ideology that might fit just as well
with the data, and further we will look for cases which, under that
particular hermeneutic lens, suggest a counter ideology, one that would
lead her to disagree with the Goodridge appellants.
While the Archdiocese case brought forth claims of anti-Catholicism,
it is just as possible to interpret that decision as indicating a conservative or
anti-progressive ideology. Indeed, one criticism of the decision was that it
was not receptive enough to the interests of affordable housing for those
such as the elderly or those living with AIDS. Former Administrator of the
receive funding under the 1998 referendum, as Silverglate says, they

were very ginger about ordering the legislature around. Even after
legislators flouted the courts decision and refused to funnel money into
the Clean Elections candidacies, the most the SJC did was tell them to
sell furniture. This SJC, he adds, seems willing to bend the law so as
not to anger the legislature.
Kristen Lombardi, Gay Marriage: Will the SJC Follow the Law or Cave into Politics?,
BOSTON PHOENIX, Apr. 17-24, 2003, available at http://www.bostonphoenix.com/
boston/news_features/top/features/documents/02831953.htm. Lawrence Friedman stated, in
regard to the handling of the clean elections case, [t]he court is going to act very carefully
and be very circumspect with ordering relief. They, as always, want to do as little as
possible that intrudes on the decision-making of the [political] branches of government.
Rick Klein, SJC Wont Fund Clean Elections Justice Rules Only Legislature Can Tap
Treasury, BOSTON GLOBE, Mar. 13, 2002, at A1, available at 2002 WLNR 2580005.
95. Yvonne Abraham, Ruling a Departure for Cautious Court, BOSTON GLOBE, Jan. 26,
2002, at B5, available at 2002 WLNR 2571686.
96. Rick Klein, SJC Tables Move to Sell Finneran Office Furniture, BOSTON GLOBE,
June 11, 2002, at B2, available at 2002 WLNR 2605896.
97. Rick Klein, supra note 94.
Boston Redevelopment Authority, Edward J. Logue, wrote a letter to the

Boston Globe complaining that her fine was egregious and
unconscionable and that she was intemperate and had used callous
and carelessly casual language.98 He further contended that her decision
would put out of business the only effective religious-based housing
organization in Greater Boston and make the lonely fight of developing
affordable housing more difficult.99
Similar infirmities exist in the Blixt case. Despite Justice Sosmans
suggestion in her dissent that invalidating the statute would benefit non-
traditional family structures, her position that the statute was
unconstitutional was at odds with GLADs amicus brief in that case, which
took the position that the grandparent visitation statute survived
constitutional scrutiny and that the best interest of the child standard,
combined with existing constitutional safeguards and a consideration of all
the relevant interests, was sufficient for grandparent visitation cases.100
Moreover, a more thorough inquiry turns up just as many cases that
might indicate a counter ideology. Over the dissent of three justices, Justice
Sosman wrote for the majority in Bongaards v. Millen, a case in which the
WBA filed an amicus brief arguing in favor of interpreting precedent such
that an outdated and inadequate statute would no longer lead to the unfair
result where surviving, disinherited spouses would receive lesser awards
than divorcing spouses.101 Sosman strongly disagreed with the WBAs
position, pointing out in no uncertain terms the aspects with which she
thought it weak, stating,
[Their] rationale . . . should not be extended in the far-reaching
and literal manner now suggested. . . . The amicus suggestsand
one of todays dissenting opinions essentially agreesthat we
should now ignore the limiting language in that observation from
[one of our prior cases] and simply include in the elective share
estate any property, including any trust assets, that would have
been treated as marital property to be divided on divorce.
Before turning to the specific defects in that proposed equation

of property rights on divorce with property rights upon a
spouses death, we note a fundamental flaw in the entire
98. Edward J. Logue, Letter to the Editor, Affordable Housing Champion Deserves Our
Support, BOSTON GLOBE, Jan. 11, 1999, at A13, available at 1999 WLNR 2460952.
99. Id.
100. Brief of Amicus Curiae Gay & Lesbian Advocates & Defenders at 2, 32-34 Blixt v.
Blixt, 774 N.E.2d 1052 (Mass. 2002) (No. 08639) (on file with the New England Law
Review).
101. Bongaards v. Millen, 793 N.E.2d 335, 352 (Mass. 2003) (citation omitted).
analysis, namely, that it completely ignores basic principles of

statutory construction.102
She further disagreed with the WBAs proposed remedy, stating,
Nor do we see substantive merit to the proposed equation of the
estate for purposes of the elective share with the marital
property of the decedent that would have been divisible if the
couple had divorced. Whatever the superficial appeal of equating
the two, it is an equation that does not withstand scrutiny . . . .103
Naturally, the WBA was disappointed.104
Also, as a Superior Court Judge in 1999, Sosman occupied a position
adverse to a feminist interest. Then, prominent feminist philosopher and
theologian, Mary Daly, described Sosman as a disappointment to the
gender and called her an Aunt Tom after Sosman refused to preliminarily
enjoin Boston College from, inter alia, distributing a course catalog
omitting courses taught by Daly.105 The dispute arose when Daly refused to
admit male students to the formal class session of a course offered by the
college and which she taught.106 Thereafter, Dalys tenure ended in
disagreementthe college claimed that she had agreed to retire and Daly
claimed that she was fired without being given the process guaranteed for
tenured professors.107 Sosman, then a Superior Court judge, concluded that
the college had made a strong showing that Daly did in fact agree to retire
and that the college nevertheless had adequate cause to fire Mary Daly.108
The case was a topic of great political interest in no small part because
Daly was a well-known progressive and the student who complained about
Dalys policy received legal backing from Washington D.C. conservative
group, The Center for Individual Rights.109 Daly believed that she was the
victim of a right-wing conspiracy.110
Gay rights advocates criticized Justice Sosmans work in Healy v.
102. Id. at 342.

103. Id. at 344-45.
104. Kathleen Burge, SJC Calls Inheritance Law Outdated, Urges Legislature to Act,
BOSTON GLOBE, Aug. 13, 2003, at B5, available at 2003 WLNR 3419888.
105. James Bandler, BC Protest Has Unexpected Twist: Embattled Feminist Professor in
Controversy Again, BOSTON GLOBE, Aug. 11, 1999, at B1, available at 1999 WLNR
2456738; Doris Sue Wong, Judge Rejects BC Teacher Who Bars Men, BOSTON GLOBE, May
25, 1999, at B4, available at 1999 WLNR 2423718.
106. Bandler, supra note 105.
107. See Wong, supra note 105.
108. Id.
109. Bandler, supra note 105.
110. See id.
Commonwealth, in which the SJC, in an opinion written by Justice Sosman,

affirmed the defendants murder conviction.111 The appeal concerned the
fact that during the course of the underlying trial, defendants sexual
orientation was made part of the record.112 Years later, the defendant
learned that the Commonwealth had failed to release a post mortem report,
which indicated an absence of semen and other signs of sexual activity on
the victims body.113 The defendant argued that this absence of evidence of
sexual activity was significant because it undermined the Commonwealths
theory that the murder was a result of a homosexual encounter gone wrong
and because it would help the defenses theory that the police were biased
against homosexuals, and that their investigation was slanted and made
without sufficient evidence.114 As support for this contention, the defendant
argued that the preliminary report shows that the police considered it a
homosexual-related murder from the outset.115
After losing at the SJC, Healy turned to the federal courts, eventually
filing a brief in the First Circuit.116 GLAD filed an amicus brief in the
federal case advocating that the court overturn the SJCs opinion.117 The
brief provided analysis of the risk that homophobia tainted the jury
deliberations and verdict, despite the findings of Justice Sosman and the
SJC. 118
While these cases do not establish that Justice Sosman had a right-
leaning ideology any more than the other cases discussed indicate that she
had a left-leaning one, it must be conceded that their existence does weaken
the view that her body of work evinces a personal politics that would cause
her to side with the Goodridge appellants.
Before transitioning to the legal point of view, one final factor ought
to be mentioned that weakens the predictors casenamely, the fact that
Justice Sosman was appointed by a Republican governor. Republicans are
considerably less likely to view gay rights claims with favor.119 Moreover,
this is the most utilized proxy for ideology in the Attitudinalist literature.120
111. 783 N.E.2d 428, 430-31 (Mass. 2003).

112. See id. at 437.
113. See id. at 434-35.
114. Id. at 435.
115. See id. at 435-36.
116. Healy v. Spencer, 453 F.3d 21, 22 (1st Cir. 2006).
117. Id. at 29.
118. See Brief of Gay & Lesbian Advocates & Defenders as Amicus Curiae Supporting
Appellant at 27-28, Healy v. Spencer, 453 F.3d 21 (1st Cir. 2003) (No. 06-1269), available
at 2006 WL 4402539.
119. PINELLO, supra note 45, at 221.
120. Cross, supra note 37, at 1479 (2003) (Most empirical studies of ideology in
And it is probably the single most reliable predictor.121

With this more comprehensive account of ideologically relevant
evidence, we can see that the basis for the prediction is not nearly as
formidable as it seemed at first blush. Justice Sosmans ideological profile,
when considering traditional attitudinal factors or proxies therefore, does
not tidily fit into a model that could be predicted with confidence to take a
particular side on the same-sex marriage issue. Furthermore, history shows
that Sosman was as likely to decide a case in a way that would frustrate the
leftist agenda as she was likely to do the same to the conservative agenda.
She stands as a cautionary example for those that seek to make predictions
about individual judges based on a handful of Attitudinal factors. Thus, this
decisionmaking use the political party of the judges appointing president as a proxy for the
judges own political ideology.).
121. Party affiliation of an appointing official is a dominant factor in federal courts.
Appointment by a Democratic president produced a probability impact of 40.5% (at least
twice as impactful as any other factor) and in cases without binding precedent on point,
federal judges appointed by Democrats were 125% more likely to support a gay rights claim
than Republican appointees. PINELLO, supra note 45, at 151-52. The effect was not as
pronounced in state courts, however, but it was still considerable: 58.9% to 47.8%,
respectively. Id. at 152 n.5; see also ROBERT A. CARP & C. K. ROWLAND, POLICYMAKING
AND POLITICS IN THE FEDERAL DISTRICT COURTS 51-83 (1983) (appointing president as an
important predictor of federal judges conduct especially in civil rights and civil liberties
cases); George, supra note 47, at 33 (Attitudinal studies have demonstrated that the
ideological direction (liberal or conservative) of the party of a judges appointing
president is a strong predictor of the case votes of justices on the Supreme Court and judges
on courts of appeal.) (citations omitted); Tracey E. George, Developing a Positive Theory
of Decisionmaking on U.S. Courts of Appeals, 58 OHIO ST. L.J. 1635, 1651 (1998) ([S]ocial
scientists have discovered that the political party of the appointing President is a good proxy
for a justices attitudes.); Carol T. Kulik et al., Here Comes the Judge: The Influence of
Judge Personal Characteristics on Federal Sexual Harassment Case Outcomes, 27 LAW &
HUM. BEHAV., 69, 74-76 (2003) (looking to party of appointing presidency and concluding
that [i]n contrast to the mixed results observed for judge gender and race, judge political
affiliation has been found to consistently influence judge decisions. Democrat judges are
known to vote more liberally than Republicans on a wide range of economic and civil
liberties issues that come before the federal courts. This tendency is especially true for cases
involving race discrimination or womens rights.) (citations omitted); Stuart S. Nagel,
Judicial Backgrounds and Criminal Cases, 53 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 333,
334-35 (1962) (same with respect to state and federal supreme court judges decisions in
criminal cases); Donald R. Songer & Martha Humphries Ginn, Assessing the Impact of
Presidential and Home State Influences on Judicial Decisionmaking in the United States
Courts of Appeals, 55 POL. RES. Q. 299 (2002); Cass R. Sunstein, David Schkade & Lisa
Michelle Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary
Investigation, 90 VA. L. REV. 301, 304-05 (2004); Sarah Westergren, Note, Gender Effects
in the Courts of Appeals Revisited: The Data Since 1994, 92 GEO. L.J. 689, 702 (2004)
(Studies have shown that the party of a judges appointing president is an excellent
predictor of the judges voting behavior.).
article is no critique of the Attitudinalist model or of the New Legal

Realism movement generally. That work is, of course, tremendously
valuable. Rather, it is a study of the application of the literature of that
movement to an individual (a particularly unique one). Perhaps this is a
usage to which this literature was not supposed to be put. Indeed, scholars
James J. Brudney, Sara Schiavoni, and Deborah J. Merritt made a similar
observation in their empirical study of the likelihood that appellate judges
would support or reject a unions legal position:
It is important to emphasize, however, that statistically
significant correlation does not equate with causation. With
respect to judicial behavior, it would be misguided to assert that
a simple, direct relationship exists between social background
and votes in particular decisions or specific types of cases. . . .
Social background is complex, and no analysis can control for all
of those complexities.
. . . Every judge, moreover, is a composite of all the background

variables in our database. For each individual, some
characteristics predict a sympathy for policies that promote
collective bargaining while others suggest an opposition to those
policies. Analyses like ours identify composite trends; they do
not pigeonhole particular judges.
. . . That bottom line leaves considerable scope for the operation

of doctrine, precedent, and other more traditional legal factors.
Our model, using an especially large number of independent
variables and controls, confirms the predominant role of those
legal factors in deciding most cases. Indeed, Board outcome, or
deference to the administrative agency, was the most powerful
predictor in all of our equations, explaining up to half of the
variance accounted for in each equation.122
Regardless, even though there is some support for the
prognosticators position, the door remains wide open for a weightier
prediction based upon a straightforward reading of Sosmans pre-
Goodridge legal decisions.
V. A LEGAL POINT OF VIEW

Before undertaking an analysis from a more legal point of view, it is
important to underscore that we are not employing a Legal Model as
122. James J. Brudney et al., Judicial Hostility Toward Labor Unions? Applying the
Social Background Model to a Celebrated Concern, 60 OHIO ST. L.J. 1675, 1759-61 (1999)
(footnotes omitted).
understood by legal empiricists.123 For instance, we are not trying to

determine whether judges, appellate judges, state supreme court judges, or
the Supreme Judicial Court, itself, could be predicted to arrive at a
particular position by employing the traditional canons of construction
upon the legal materials. Instead, we are simply trying to determine
whether a stronger predictor can be culled from Sosmans legal record
when it is viewed in a charitable manner, similar in tone to the viewpoint of
those that support the Legal Model. To be sure, we have already analyzed
her decisions under a particular lens, one designed to determine her
underlying ideological views. Here, however, we will be less
deconstructive; we will be analyzing her decisions on their own terms. That
is, we will determine under the plainest reading possible whether the legal
conclusions drawn therein make a subsequent ruling in favor of the
Goodridge appellants more or less likely. The possibility that SJC
precedent was unable to dictate the result in Goodridge is not particularly
troublesome; we are much more interested in Justice Sosmans own views
in those cases that were germane to Goodridge, even if those views were
articulated in non-precedential writings.124 Once evaluated in this way, her
123. One technique that has found favor among certain scholars is to single out one tenet
of the established legal canons of construction and subject it to empirical analysis that will
give rise to quantitative results. For instance, some have chosen to test horizontal stare
decisis at the Supreme Court level by determining whether dissenters in a case had changed
their positions when the progeny of that case later came before them. See HAROLD J. SPAETH
& JEFFREY A. SEGAL, MAJORITY RULE OR MINORITY WILL: ADHERENCE TO PRECEDENT ON
THE U.S. SUPREME COURT 287-315 (1999). Others have chosen to test vertical stare decisis
in the federal appellate courts by testing whether those courts have abided by new rules
issued by the Supreme Court. See, e.g., John Gruhl, The Supreme Courts Impact on the
Law of Libel: Compliance by Lower Federal Courts, 33 W. POL. Q. 502 (1980); Donald R.
Songer & Reginald S. Sheehan, Supreme Court Impact on Compliance and Outcomes:
Miranda and New York Times in the United States Courts of Appeals, 43 W. POL. Q. 297
(1990). Still others have analyzed standards of review, analyzing the relative likelihood of
affirmance under increasingly deferential standards (de novo, clearly erroneous, abuse of
discretion, substantial evidence, and arbitrary and capricious). See, e.g., Cross, supra note
37, at 1500-03; Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 44
WM. & MARY L. REV. 679, 689 (2002); see also Francis M. Allegra, Section 482: Mapping
the Contours of the Abuse of Discretion Standard of Judicial Review, 13 VA. TAX REV. 423,
461-73 (1994).
124. While a majority of Justice Sosmans decisions would be precedential, the reason
that her decisions serve as a better predictor than mere precedent is that certain of her
decisions were not precedential, such as concurrences and dissents. There is reason to
believe that she would continue to adhere to those non-precedential decisions. Indeed,
studies have shown that U.S. Supreme Court justices only very rarely change their position
after dissenting in a casethey largely continue to maintain their position when faced with
the progeny of the case in which they originally dissented even though precedent goes
against their position. See SPAETH & SEGAL, supra note 123, at 287 (noting that judges
prior work sends a stronger, more consistent message than do the

previously discussed factors.
First, we must identify relevant cases. The Goodridge appellants
argued that the marriage statute should be subjected to strict scrutiny
because it infringed upon the fundamental right of marriage, because it
discriminated on the basis of gender in violation of the Equal Rights
Amendment, and/or because it distinguished on the basis of a suspect class
(sexual orientation).125 The argument that carried the day, however, was
that the statute failed to survive the rational basis scrutiny to which all
statutes are at least subject. Because it was not clear which argument or
arguments would form the basis of Justice Sosmans opinion, we will
consider all of the arguments raised.
One prefatory note: the underlying reasoning of the analysis here is
that Justice Sosman would be more likely to choose a result consistent with
her decisions in cases that are germane to the issues raised in Goodridge.
Such cases provide a non-ideological ground for prediction because a
judges decision to behave consistently with the express reasoning of her
own prior decisions does not satisfy our definition of ideological unless
those prior decisions explain that the judge is behaving ideologically
(which is quite unlikely, as discussed). This is true even if her choice to
behave consistently was not entirely dictated by precedent because there
simply is not a group conflict concerning this issue that has given rise to an
intelligentsia-driven project.126
A. Sex Discrimination under Equal Rights Amendment

From the period before Goodridge, a thorough search turned up only
a single case upon which Justice Sosman sat and in which a litigant raised a
challenge premised upon the notion that there has been a violation of the
Equal Rights Amendment127namely, Commonwealth v. Chou.128 And in
that case, the court rejected such a challenge to the validity of the accost
and annoy provision of Massachusetts General Laws chapter 272, section
53.
Furthermore, there were few SJC cases even mentioning the Equal
Rights Amendment in the fifteen years preceding Goodridge.129 Because
would change their position to precedential position in only 11.9% of cases).

125. See Appellants Brief, supra note 2.
126. See KENNEDY, supra note 27, at 39-42.
127. See MASS. CONST. art. I.
128. 741 N.E.2d 17 (Mass. 2001).
129. See, e.g., Commonwealth v. Jordan, 785 N.E.2d 368, 378 n.11 (Mass. 2003);
Commonwealth v. Chou, 741 N.E.2d 17 (Mass. 2001); Planned Parenthood League of
Mass., Inc. v. Attorney Gen., 677 N.E.2d 101, 106-07 n.10 (Mass. 1997); Coraccio v.
this particular sex discrimination challenge was a novel one and because
the relevant law was scarce, there was insufficient legal support for the
notion that Justice Sosman would favor the appellants in this regard, but
there was marginal support for the contrary notion.
B. Homosexuality as a Suspect Class

In every case in which Justice Sosman was asked to recognize for the
first time in Massachusetts a group as a suspect class, she refused to do so.
Moreover, at least one legal expert opined that it would be unlikely for the
court to take this route.130 Thus, there is support for the view that she would
reject the argument.
C. Fundamental Right of Marriage

Before Goodridge, there was scarcely any Supreme Judicial Court
authority concerning the application of the fundamental right to marry,131
let alone authority on the subject arising during Justice Sosmans tenure on
Lowell Five Cents Sav. Bank, 612 N.E.2d 650, 654 n.7 (Mass. 1993); Telles v. Commr of
Ins., 574 N.E.2d 359, 361-63 (Mass. 1991); Drinkwater v. Sch. Comm. of Boston, 550
N.E.2d 385, 387 n.1 (1990).
130. The Boston Phoenix stated:
First, it could define gay people as a suspect class, the legal term for
groups who have historically faced discrimination. That means that the
court could throw out any state law that discriminated against people on
the basis of sexual orientation including a restrictive marriage law.
Thats the honest way to decide this, says Baron, the BC professor.
Shouldnt the law be based on what everybody knows that the
opposition to changing the marriage statute is animus-driven? Though
Baron hopes the justices would be strong enough to take this route, he
considers it unlikely. Only one state court has ever deemed gay people a
suspect class; in 1998, the Oregon Court of Appeals found that sexual
orientation met such a classification, after ruling that the Oregon
Constitution requires a state university to extend health- and life-
insurance benefits to the partners of gay and lesbian employees (the
Oregon Supreme Court declined to review the case). Courts, Baron
says, frequently shrink from accusing others of acting out of animus.
Lombardi, supra note 94.
131. See, e.g., Tarin v. Commr of Div. of Med. Assistance, 678 N.E.2d 146, 155 (Mass.
1997) (mentioning right to marry, establish a home and bring up children);
Commonwealth v. Stowell, 449 N.E.2d 357, 359-60 (Mass. 1983) (holding that adultery
statute did not infringe upon fundamental marriage rights); Opinion of the Justices to the
Senate, 376 N.E.2d 810, 818 (Mass. 1978) (holding fundamental matters relating to
marriage within zone of individual privacy); Secy of the Commonwealth v. City Clerk of
Lowell, 366 N.E.2d 717, 723 (Mass. 1977) (acknowledging freedom of personal choice in
matters of [the] family in context of analysis of, inter alia, changing name when married).
the court. Moreover, the court had not yet had the opportunity to decide
whether there existed a fundamental right to same-sex marriage. Thus, it
could be argued that there was not a sound legal basis to predict that Justice
Sosman would side with the Goodridge appellants.
If we are less specific in our inquiry, however, and instead consider
her analysis of fundamental rights generally, then it becomes apparent that
the better prediction would be that she would conclude that there is no
fundamental right to same-sex marriage. There are several instances in
which Sosman wrote or joined opinions in which the court refused to
recognize new fundamental rights.132 Likewise, she and the court refused
numerous times to extend existing fundamental rights to new contexts.133
Indeed, there are only two instances during that period in which Justice
Sosman viewed a fundamental rights challenge with favor.134 One of those
two cases is particularly noteworthy because she was in the minorityBlixt
132. See, e.g., Querubin v. Commonwealth, 795 N.E.2d 534, 539-40 (Mass. 2003)
(refusing unaminously to recognize fundamental right to be released on bail prior to trial);
Guardianship of Hocker, 791 N.E.2d 302, 307 (Mass. 2003) (holding unanimously that
determination of incompetency does not deprive ward of fundamental liberty interest);
Paquette v. Commonwealth, 795 N.E.2d 521, 528-29 (Mass. 2003) (holding unanimously
that pretrial detention hearing inquiry into dangerousness does not infringe upon defendants
fundamental liberty interests); Route One Liquors, Inc. v. Secy of Admin. & Fin., 785
N.E.2d 1222, 1231 (Mass. 2003) (holding unanimously that right to pursue ones business is
not fundamental); Commonwealth v. McIntyre, 767 N.E.2d 578, 581-82 (Mass. 2002)
(disagreeing unanimously with defendant that source of judges power to order restitution in
case arose from fundamental right of defendant that restitution be an element of trial
disposition); Adoption of Don, 755 N.E.2d 721, 729 (Mass. 2001) (declining unanimously
to find fundamental right of parents to confront children at civil trial concerning termination
of parental rights); Longval v. Superior Court Dept. of the Trial Court, 752 N.E.2d 674,
675-77 (Mass. 2001) (holding unanimously the statute that required inmates to provide
documentation establishing indigence did not implicate fundamental rights).
133. See, e.g., Hagen v. Commonwealth, 772 N.E.2d 32, 38 (Mass. 2002) (discussing
fundamental right to prompt disposition but finding no violation); In re Dutil, 768 N.E.2d
1055, 1061-65 (Mass. 2002) (finding no violation after subjecting civil commitment statute
to analysis under rubric of fundamental right to freedom from physical restraint);
Commonwealth v. Marquez, 749 N.E.2d 673, 682 (Mass. 2001) (Sosman in majority
implicitly disagreeing with dissents contention that fundamental right to be free from
government intrusion inside home extended to evidence secured after exit of home); In re
Adoption of Willow, 745 N.E.2d 330, 341-42 (Mass. 2001) (holding unanimously that
fundamental rights of parents not infringed when mothers parental rights terminated on
grounds of best interests of children); cf. Commonwealth v. Lapointe, 759 N.E.2d 294, 298-
300 (Mass. 2001) (holding unanimously probation conditions reasonably related to goals of
sentencing and probation even if there is infringement of defendants fundamental rights).
134. See, e.g., Commonwealth v. McLeod, 771 N.E.2d 142, 148-49 (Mass. 2002)
(finding unanimously a violation under established right to freedom from physical restraint
where G.L. c. 123A was applied to punishment for non-sexual offense).
v. Blixt.135 But as discussed, there are reasons to doubt that Blixt sends a
strong message that Justice Sosman would favor the appellants. It is
important to add that, from the legal perspective as well, Justice Sosmans
position in Blixt reflected her opinion that the court, which had articulated a
new standard136 for pleadings brought pursuant to the grandparent visitation
statute, should instead leave it to the Legislature to articulate the interests
that would justify such legislation, to redefine the standards necessary to
serve those interests, and to identify appropriate classes of parents,
children, and grandparents who need to be subjected to such proceedings in
order to serve those interests.137 She further stated that [w]here, as here,
the statute is unconstitutional on its face, it is our job to say so and to let the
Legislature rewrite the statute if and as it wishes.138 Indeed, it would have
been impossible for Justice Sosman both to adhere strictly to this principle
and to side with the Goodridge appellants; the appellants requested that the
SJC declare that they are entitled to marriage licenses.139 Unlike a request
for, say, either same-sex marriage or same-sex civil unions, the requested
relief leaves little, if any, legislative choice. Compare this to Blixt, where
Sosman remarked:
There is a vast array of options amongst the differing provisions,
both substantive and procedural, that States have enacted. It is
not up to this court to pick and choose from among that vast
array simply to rescue this statute. Such choices are the essence
of legislation, not judicial interpretation.140
Thus, the circumstances of Goodridge were such that this principle
that the judiciary ought to be especially deferential to the legislatures law
making power was more likely to inure to the benefit of the
Commonwealth.141
135. 774 N.E.2d 1052, 1066 (Mass. 2002) (Sosman, J., dissenting).
136. See Jeffrey J. Trapani, Comment, Grandparent Visitation Rights in Massachusetts
after Troxel: Blixt v. Blixt, 38 NEW ENG. L. REV. 759, 775 (2004) (The SJC installed a
heightened pleading requirement to address concerns about the effects of this litigation on
the parent and child.).
137. Blixt, 774 N.E.2d at 1085.
138. Id. at 1067.
139. Brief of Plaintiffs-Appellants at 111, 113, Goodridge v. Dept of Pub. Health, 798
N.E.2d 941 (Mass. 2003) (No. SJC-08860).
140. Blixt, 774 N.E.2d at 1075.
141. Interestingly, it was the appellees and not the appellants who cited Justice Sosmans
dissent in support. See Brief of Defendant-Appellees at 106 n.85, Goodridge v. Dept of
Pub. Health, 798 N.E.2d 941 (Mass. 2003) (No. SJC 08860) (quoting in parenthetical [t]he
rational basis test can resort to mere possibilities as justification for classifications (quoting
Blixt, 774 N.E.2d at 1082)). Moreover, appellees argued that upholding the Legislatures
D. Rational Basis Test

In the end, it was the rational basis test that the court applied to the
Goodridge appellants claim.142 Again, there is little indication that Justice
Sosman would find a constitutional violation under that standard and the
better guess would be that she would not. As with the other claims, we
must be somewhat generic in our inquiry in order to include a suitable
number of cases in our analysis. That is, we will consider those occasions
in which Justice Sosman reviewed claims that legislation failed to survive
rational basis scrutiny.
All decisions in this vein were unanimous, and the vast majority of
them were authored by judges other than Sosman. Of these, there are no
cases in which legislation failed to pass rational basis scrutiny.143 A smaller
number of decisions were authored by Sosman, herself, and in these cases
the legislation passed constitutional muster as well.144
line-drawing in this area is simply acknowledging the appropriate allocation of

responsibility between the judicial and legislative branches in making difficult policy
choices in the face of conflicting and, as yet, incomplete information. Id. at 122.
142. Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 960-61 (Mass. 2003).
143. Route One Liquors, Inc. v. Secy of Admin. & Fin., 785 N.E.2d 1222, 1229-30
(Mass. 2003) (rejecting claim that excise tax that distinguished between taxpayers on basis
of proximity to professional football team stadium violated rational basis scrutiny because
the Legislature could have reasonably concluded that benefit of operating parking lot within
close proximity to the stadium is greater than that of operating one farther away); Doe v.
Commr of Transitional Assistance, 773 N.E.2d 404, 414-15 (Mass. 2002) (rejecting
challenge that residency requirement to welfare aid failed rational basis scrutiny); In re
Dutil, 768 N.E.2d 1055, 1066 (Mass. 2002) (rejecting challenge that sexually dangerous
persons statute fails rational basis scrutiny because distinction between review procedures
which forced sexual offenders to file petition for review was constitutional); Mass. Fedn of
Teachers v. Bd. of Educ., 767 N.E.2d 549, 562 (Mass. 2002) (rejecting claim that regulation
which distinguished between mathematics teachers in communities on grounds of MCAS
scores failed under rational basis scrutiny because distinction was rationally related to
legitimate state interest of providing high quality public education to every child in
Commonwealth); Longval v. Superior Court Dept. of the Trial Court, 752 N.E.2d 674, 677
(Mass. 2001) (rejecting challenge to amendments to Massachusetts General Laws chapter
261, sections 27A and 29, that require inmates to submit documentation establishing
indigence and pay court filing fees under rational basis scrutiny because it is rationally
related to the legitimate governmental interest of deterring frivolous prisoner suits and
noting that it only requires payment of filing fee if prisoner has funds in his prison account).
144. Mass. Prisoners Assn Political Action Comm. v. Acting Governor, 761 N.E.2d 952,
961 (Mass. 2002) (rejecting challenge that Massachusetts General Laws chapter 55, section
14 which forbade inmate political organization, failed under rational basis scrutiny because
prison officials rationally distinguished between inmate organization with avowed adversary
purpose and one that serves valid rehabilitative goals); Harlfinger v. Martin, 754 N.E.2d 63,
72 (Mass. 2001) (holding that statute serving to shorten limitations period in certain medical
malpractice cases survived rational basis scrutiny because low risk of stale claims in that
Thus, the best guess given this legal information is that Justice
Sosman would not side with the Goodridge appellants as to this claim.145
type of malpractice case made it rational to distinguish it and shorter limitations period
furthered legitimate interest of controlling cost of insurance); Carter v. Bowie, 736 N.E.2d
385, 389 (Mass. 2000) (rejecting challenge for failure to provide social workers with
screening mechanism of malpractice tribunal under law even though law provided
mechanism to psychologists because profession of social work was nonmedical despite
overlap of professions in certain aspects).
145. Admittedly, were we to include cases in which the court applied tests that merely
bear a family resemblance to rational basis scrutiny, the picture grows more complex. But it
nevertheless fails to support the prediction that Sosman would side with the appellants.
There are three examples. In the first, the court unanimously rejected a claim under similar,
but not identical, scrutiny. See Sierra Club v. Commr of the Dept of Envtl. Mgmt., 791
N.E.2d 325, 333-34 (Mass. 2003). After the superior court issued injunction preventing DEP
plan for constructing new ski trails or widening existing ones, the court unanimously held
under less deferential version of rational basis standard that superior court erred because
DEP had broad discretion in identifying and minimizing environmental impacts of the
proposed expansion based on public input and factual analyses. Id. In another, there was a
split in the court and Sosman sided with a narrow majority holding that the legislation
passed muster under a differentagain similarstandard. See Durand v. IDC Bellingham,
793 N.E.2d 359, 364, 368 (Mass. 2003). After attempting to rezone land for industrial use
failed, a power company suggested to the town that it would be willing to make a gift of
enough money to enable the town to build a new high school if the rezoning were permitted.
Id. at 361-62. With this concession the zoning bylaw was approved. Id. at 362. In reviewing
the reasonableness of the zoning bylaw, the court utilized a highly deferential test which
required a determination that the ordinance will not normally be undone unless the plaintiff
can demonstrate by a preponderance of the evidence that the zoning regulation is arbitrary
and unreasonable, or substantially unrelated to the public health, safety . . . or general
welfare and which mirrors the test applied in Goodridge. See id. at 364 (quoting Johnson
v. Edgartown, 680 N.E.2d 37, 40 (Mass. 1997)). Sosman sided with the narrow 4-3 majority
which decided the case on the ground that they defer to legislative findings and choices
without regard to motive. Id. Thus, the extraneous consideration tacked on to an otherwise
valid enactment did not render the enactment irrational. Id. at 368-69. The minority, which
reached the same result on standing grounds, was less deferential, arguing that [t]he
motives and reasons of a town meeting, unlike the motives and reasons of members of the
Legislature, may be the proper subject of inquiry. Id. at 369 (Spina, J., concurring in part
and dissenting in part). Finally, on one occasion, while a superior court judge, Sosman
invalidated a contract award in a case concerning a public golf course on the ground that it
lacked a rational basis. See Bowman v. Drewry, 5 Mass. L. Rep., 104, 108-09 (Super. Ct.
1996), available at 1996 WL 1748441 (invalidating a contract award after concluding that
that there was no rational basis for setting forth criterion that bidders have prior experience
operating a restaurant at a municipal golf course when accepting bids for the award of a
contract to run restaurant on public golf course and after finding evidence that the town
wanted simply to award the new contract to the prior contract holder). Thus, these cases are
a wash.
VI. BALANCING THE ATTITUDINALIST AND LEGAL PREDICTIONS

Comparing our Attitudinal findings to our findings based upon Justice
Sosmans legal records, the latter is the weightier prediction. In short, it
sends a clearer, less equivocal message. This is not to suggest that
predicting her dissent was a slam dunk. To the contrary, taking into account
all of the evidence discussed, it is clear that Justice Sosman was a complex
individual. But the personal characteristics that we have discussed only
skim the surface. Above and beyond her considerable professional and
civic accomplishments, she was a masterful pianist, a perfectionist
gardener, a passionate bookworm, a Boston sports savant, a loyal daughter
and sister, a caring and wise mentor, and so much more. She could very
well be the type of singular individual who defies the reductivist models of
empirical scholarship. Within the parameters of this analysis, certainly, it
was quite difficult to determine with any degree of precision what her
attitudes towards same-sex marriage were on the eve of Goodridge. In turn,
it was nearly impossible to determine whether her attitude would cause her
to rule in a particular way in the Goodridge case. Better than using her
supposed personality as a guide, the legal opinions that she authored or in
which she took part are a better indicator, showing that only rarely, if ever,
has Justice Sosman viewed arguments of the sort raised by the Goodridge
appellants with favor. This is not to suggest, of course, that her dissent was
the correct legal outcome for the court; rather, it is to show that the
Attitudinalist prediction was not as weighty as the legal one.
It might be argued that, even if I have shown that the better prediction
of Justice Sosmans handling of Goodridge would be based upon her prior
decisions, I have failed to eliminate the possibility that her ultimate
decision was not ideological. It was never my intention to discern what
Justice Sosmans actual motivation was, of course. We ought not forget,
however, that she provided a rationale for her decision. Thus, any lingering
doubt about her motivation is a doubt premised upon the possibility that
Justice Sosmans dissent cannot be accepted at face value. There is little
that I can do here to convince that her opinions were authentic and not the
byproduct of reverse engineering from a desired political outcome. It might
nevertheless be insightful to provide evidence, not of an academic kind, but
of an anecdotal kind.
CONCLUSION
In the lucky year that I worked for her, Justice Sosman and I never
once discussed politics, and we would only rarely discuss jurisprudence.
Instead, when it came to legal matters, ours were discussions of the narrow,
parochial matters that had arisen in the assignments given to me. As to
philosophical matters, I could tell you far more about her views on the
metaphysics of the Lord of the Rings saga or the moral questions

surrounding Manny Ramirezs on-the-field antics than I could tell you
about her views on hot-button issues. That is not to say that we never
discussed anything of social import; she sometimes would divulge the
qualities that she believed made a good judge, a good law clerk, or a good
lawyer. But the message was not consistent with any ideology, as we have
defined it. Rather, it was a pragmatic message, one designed to motivate us
to work diligently, to have fidelity to the legal texts, and to be humble and
careful in executing our craft. As personally helpful and inspiring as these
conversations were, Justice Sosmans most significant contribution was to
lead by example. This was a judge who did not need law clerks. She was an
exhaustive researcher and, despite her gift for writing, a tireless editor. Her
effort and care were astoundingit seemed impossible that she could have
such a rich and diverse life outside of the courthouse. For what its worth, I
can say that I have no doubt in light of my experiences with her that we can
accept all of Justice Sosmans opinions, including her Goodridge dissent, at
face value. Watching her on the job, I saw no hint of a hidden agenda, only
a hard worker with a great deal of faith, respect, and commitment for the
work that judges do.

Sheppard: Attitude Issues

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SHEPPARD.

FINAL 5/9/2008 4:36:53 PM

ATTITUDE ISSUES: THE DIFFICULTY

408 NEW ENGLAND LAW REVIEW [Vol. 42:407

2008] ATTITUDE ISSUES 409

Here, I analyze one such predictionthat Supreme Judicial Court

I. GOODRIDGE, THE PREDICTION, AND A DISCLAIMER

410 NEW ENGLAND LAW REVIEW [Vol. 42:407

right of marriage,2 because its restriction constituted sex discrimination,3

2. Brief of Plaintiffs-Appellants at 42-48, Goodridge v. Dept of Pub. Health, 798

2008] ATTITUDE ISSUES 411

Justice Sosmans passing, the numerous obituaries about her almost

the GOP, WASH. POST, Nov. 8, 2004, at A1, available at

412 NEW ENGLAND LAW REVIEW [Vol. 42:407

think added to this image that I was going to be this crusading

2008] ATTITUDE ISSUES 413

predictions or strong suggestions of what was likely to transpire. Certainly

state constitution. Since the Ontario Appeals decision and especially

414 NEW ENGLAND LAW REVIEW [Vol. 42:407

II. METHODOLOGY, TERMINOLOGY, AND MODELS

2008] ATTITUDE ISSUES 415

of the Goodridge decision supported the prediction. The approach is

A. The Prediction in Detail

416 NEW ENGLAND LAW REVIEW [Vol. 42:407

instant caseH.L.A. Hart famously informed us that

2008] ATTITUDE ISSUES 417

Judicial legislation is not necessarily ideological in the sense used

418 NEW ENGLAND LAW REVIEW [Vol. 42:407

hard case may engage in interpretive judgments of political morality

2008] ATTITUDE ISSUES 419

commitments that do not qualify as ideological, such as judicial norms of

C. The Means for Gathering Evidence in Support of the Prediction

420 NEW ENGLAND LAW REVIEW [Vol. 42:407

2008] ATTITUDE ISSUES 421

Because we will ultimately test whether the Attitudinal-based

422 NEW ENGLAND LAW REVIEW [Vol. 42:407

precedent dictates, as the justices in Goodridge were asked to do, we are

III. MAKING THE BEST CASE FOR THE PROGNOSTICATORS

2008] ATTITUDE ISSUES 423

424 NEW ENGLAND LAW REVIEW [Vol. 42:407

2008] ATTITUDE ISSUES 425

D. Womens Bar Association Membership/All-female Law Firm

426 NEW ENGLAND LAW REVIEW [Vol. 42:407

1. Womens Bar Association

2. All-female Law Firm

2008] ATTITUDE ISSUES 427

E. Comfort with deciding policy issues

Change, 1972-1986, 54 J. OF MARRIAGE AND THE FAMILY 559, 563 (1992).

428 NEW ENGLAND LAW REVIEW [Vol. 42:407

The Boston Globe wrote:

Last month, Finneran fired a shot across the bow of judicial

2008] ATTITUDE ISSUES 429

430 NEW ENGLAND LAW REVIEW [Vol. 42:407

Judge Sosmans ruling castigated archdiocesan officials and

Sosman is not up for confirmation for anything, but if she were,

2008] ATTITUDE ISSUES 431

The first mistaken assumption in the courts analysis is the

judgment was entered without the commonwealth but the child

432 NEW ENGLAND LAW REVIEW [Vol. 42:407

homes that place a child at greater risk of harm from denial of

72. Id. at 1079-80 (citations omitted).

2008] ATTITUDE ISSUES 433

might be argued that this is another indication that Sosman was

IV. EVALUATING THE EVIDENCE IN SUPPORT OF THE PREDICTION