Their Legacy Moves us Forward

Their Legacy Moves us Forward

by Jennifer Hawthorne

The legal community lost two brilliant minds last week with the passing of the Massachusetts Supreme Judicial Court Chief Justice Ralph D. Gants, and the passing of Supreme Court of the United States Justice Ruth Bader Ginsburg. In very different ways, both of these great leaders influenced my career path. They each helped to define for me the way in which I wanted to use my advocacy skills to promote more access to justice and a justice system that promotes greater equality in outcome. While my story may be unique, these two zealous advocates had a memorable impact on the career of many of my fellow mediators too. 

When applying to law school, I wrote of my desire to affect change through litigation and advocacy to further women’s and civil rights. I think for most female lawyers of my generation, Justice Ginsburg was a beacon of hope and inspiration. She was one of the few very public examples of a woman who had truly managed to have it all. She had a career and legacy that will likely only be matched by a small number of women in my lifetime.  She managed to balance that with a fulfilling family life by finding a life partner who truly considered her an equal. She worked through pregnancy and motherhood, grief and her own illnesses, striking down barriers at every stage of her life. She cleared the path for many more to follow in the future so that hopefully woman rise in the ranks in equal proportions to men in the very near future, in every field, not just the law. There are not enough words to adequately describe the drive and inspiration I felt each time I read an opinion, majority or dissent, written by her during my legal education. 

Justice Gants more directly impacted the way I think about the practice of law. I had the privilege of attending Northeastern University School of Law where I took Professor Deborah Ramirez’s class entitled “Balancing Liberty and Security.” Chief Justice Gants, who was then a Superior Court Judge and married to Professor Ramirez, often guest lectured. During one such lecture, Chief Justice Gants assigned us roles in previously decided cases that tried to strike a balance between liberty and security. As he went around the room, I found myself hoping that I would be assigned a role I could argue passionately and thereby demonstrate my advocacy skills. Instead, when he got to me, I was assigned the position of arguing for the government in Korematsu v. United States, 323 U.S. 214 (1944). For those unfamiliar with Korematsu, my role was to argue in support of the Japanese internment camps as a means of creating security for non-Japanese-descendant Americans during World War II.

My face must have immediately registered my displeasure because without my speaking a word, Chief Justice Gants responded explaining to the class that as lawyers, it is our job to zealously advocate for our clients. By definition, a zealous advocate is someone who does everything reasonable to help a client achieve the goals set at the outset of the representation. Chief Justice Gants further explained that in this particular class, we did not have a choice with respect to our clients and that therefore we are bound to set aside our own judgments about morality and ideas about “good or bad” and step into the shoes of our clients to formulate the best legal arguments we could to justify our client’s actions and/or goals. He also took a moment to point out that in our careers, in contrast to school, we would have a choice about whether we wanted to choose a path where we would have little say over which clients we chose to represent or whether we wanted to be deliberate in choosing a career path that allowed us to align our morality with our zealous advocacy on behalf of others. 

Although at the time I did not immediately think of Justice Ginsburg, it’s impossible not to see her as the quintessential example of a zealous advocate who carefully chose her clients to affect change increasing gender equality with every case she won.  During her career as a lawyer, Justice Ginsburg worked to ensure that gender was no longer a factor with respect to federal military and social security benefits, that women had equal status when it came to property tax and ownership rights, that marital status and pregnancy could not derail a woman’s career, and that women had equal opportunity to sports, and that women had the right to make decision over her their own reproductive decisions. 

At this point, you may be wondering why an organization of mediation professionals who spend their professional lives focused on maintaining neutrality to help others resolve their own conflicts might be so interested in what it means to be a zealous advocate. While by definition zealous advocacy applies to the client one is hired to represent, it is our job as mediators to help clients (and sometimes their counsel) see past positions to understand their goals more broadly.  Mediators know that the most effective zealous advocates help clients achieve goals and interests, rather than focus solely on one position while ignoring the bigger picture.  In this way, the concept of zealous advocacy can also apply to a cause and to our values, and our willingness do whatever reasonable to further that cause. Both Chief Justice Gants and Justice Ginsberg both spent their careers not just zealously advocating for their individual respective clients but also for much larger systemic change and for their values.

Chief Justice Gants was deeply committed to and a zealous advocate for expanding access to justice. While he was Chief Justice, he strengthened the judiciary branch by cooperating with both the executive and legislative branches. His willingness to cooperate resulted in increased funding for the judiciary which then allowed for the creation of a budget line item for dispute resolution. He also appointed a pillar of chief justices who listen to their colleagues and constituents and lead their divisions of the trial court to provide what Judge Edward Ginsburg always called predictability and consistency. With the combination of these actions, he improved access to justice for litigants in the Probate and Family Court by expanding access to mediation allowing unrepresented litigants to mediate their divorce or child custody issues. During his tenure, through his appointees and their staff, he promulgated the clearest child support guidelines to date and he also wrote the majority opinion in Young v. Young, 478 Mass. 1 (2017), explaining the importance of evaluating the “need” of the recipient spouse to maintain the standard of living at the time of the divorce. Taken together, the clarifications in child support and alimony calculations are gifts to family mediators that allow us to help inform our clients in a way that leads to more mediated agreements.   He was a friend of the courts and of all who need them, especially those who represented themselves. In so doing he created fertile soil for mediation to flourish, and our garden continues to grow thanks in part to his leadership.

Justice Ginsburg’s work on equality similarly has an impact the mediation of family conflicts. Her focus on gender equality had a significant impact on the way in which family responsibilities could be shared. Her commitment and dedication to equality in sharing child rearing responsibilities between spouses provides an example for our clients. As professionals committed to spreading the word of the benefits of mediation and dispute resolution, we can and should learn from her belief that it is important to “[f]ight for the things that you care about but do it in a way that will lead others to join you.” She also believed that “If you want to be a true professional, do something outside yourself.” That is what we all do every day while working with our clients. We strive to bring a balance to their family lives taking ourselves out of the conversation while providing a space for them to hear each other’s voices and to decide what works best for their families.  

Taken together, the dedication to access to justice and ensuring that all voices are included at the table reflected in the lives and careers of Chief Justice Gants and Supreme Court Justice Ginsburg provide ongoing motivation and inspiration to all who believe in dispute resolution. As we mourn these two great legal minds, we at the Massachusetts Council on Family Mediation send peace to their loved ones and we share our deep hope that their memories provide the inspiration to continue the fight to increase access to fair outcomes both through the court and outside of court by providing a table for those voices involved in the conflict to be heard and to therefore increase just and fair results regardless of status, gender, sex, sexual orientation, race, ethnicity, country of origin or marital status. By doing our work, we honor their memory and carry on their legacy.