Tenure on Massachusetts’ Highest Court Plummets to All-Time Low

Justices on Massachusetts’ highest court are averaging the shortest terms they’ve served in decades, making it more difficult for attorneys to predict the court’s leanings and signaling an emerging trend in how judgeships fit into an attorney’s larger career.

Judges appointed since 2010 have spent an average of just six years on the Supreme Judicial Court, according to a Bloomberg Law analysis. Tenure has dropped consistently since Massachusetts set a mandatory judicial retirement age of 70 in 1972, when it was common for judges to serve nearly two decades.

“The rapidity of the turnover inherently results in less predictability and less familiarity with the justices, and more uncertainty about what the court is going to do,” said Lisa Goodheart, a partner for Fitch Law Partners LLP who chaired the group that screens judicial candidates under former Gov. Deval Patrick (D). “It injects a little bit more fluidity and potentially instability in the law.”

It’s hard to pinpoint exactly what’s behind the drop, but local attorneys and law professors point to some combination of less linear career paths in the legal profession, heavy workload, longer life expectancy, and salaries that haven’t kept up with compensation for top private-sector lawyers.

A Fluctuating Court

Shorter tenures mean that the interpretation of the law is vulnerable to fluctuations depending on who’s on the bench, and makes it harder for lawyers to prepare for oral arguments.

“Consistency is critically important for how the law operates particularly at the state level,” said Lawrence Friedman, a professor who teaches state constitutional law at New England Law. “All of us make decisions based on what we understand the rules to be. If the rules are constantly changing, it makes it very difficult to make decisions.”

Appellate lawyers need to study up on the court’s new dynamic every time a new justice comes in, along with each individual justices’ preferences and philosophies, Goodheart said.

Turnover also has a direct impact on clients. Whether a litigant should appeal their case “depends on being able to forecast what the highest court of the Commonwealth thinks the law is,” said Thomas Carey, an adjunct professor of appellate advocacy at Boston College Law School.

Goodheart and Carey raised concerns that newer justices may be more inclined to overturn past decisions, while a court that decided an issue previously could be more likely to uphold precedent.

But former Chief Justice Margaret Marshall said it wasn’t all that disruptive when the court experienced a similar period of turnover in the late 1990s and early 2000s with seven justices retiring in roughly five years. “The court has to absorb the new justices but it doesn’t really impact the jurisprudence, except that you have new voices,” Marshall said.

Changing Career Trajectories

Two of the Supreme Judicial Court’s seven justices announced at the end of 2023 that they would leave the court in their mid 60s—years ahead of mandatory retirement—for outside opportunities, potentially signaling a new trend in how attorneys view their career trajectories.

Justice Elspeth Cypher left the court earlier this month for a teaching position at BC Law, while Justice David Lowy will serve as general counsel at University of Massachusetts. Both had shorter tenures than their immediate predecessors.

Margot Botsford, Cypher’s predecessor, served on the SJC for 10 years before hitting mandatory retirement. Robert Cordy served for 16 years before stepping down to return to private practice, handing his seat to Lowy.

Decades ago, “there was definitely was more of a sense that this was the pinnacle of your career and that if you had the opportunity, barring some extraordinary circumstance, you should serve to the end of your allotted time,” said Renée Landers, a professor at Suffolk University Law School who clerked on the Supreme Judicial Court and has worked on issues of judicial independence and ethics.

Now that life spans are longer, “You can serve for several years, even decades, and still have an entire second career,” said William Raftery, senior knowledge management analyst for the National Center for State Courts.

John Greaney, who served as a Supreme Judicial Court justice for almost 20 years, is a good example. After hitting mandatory retirement, he joined the faculty at Suffolk Law and then took a senior counsel role at Bulkley Richardson and Gelinas LLP.

“I can’t think of a reason why people would not want to retire early,” Greaney said, noting the position’s heavy workload. Former judges can make considerable money going to private practice with a workload that’s “much less strenuous” than the SJC, he said.

The SJC’s justices are the twelfth-highest earners across state supreme courts, earning at least $226,000. By contrast, first year associates at Big Law firms in Boston can make as much as $215,000.

“For those who are putting children through college or planning for retirement, being offered a lucrative job in the private sector may be quite tempting” given the gap between what they’re payed and their earning potential, Goodheart said.

‘No Happy Balance’

Every state looks at judicial tenure differently, and “there is no happy balance,” said Raftery.

The Brennan Center for Justice recommends state supreme court justices serve between 14 and 18 years to allow new voices to come in, while an American Bar Association commission that Marshall served on suggests a tenure of at least 15 years. Massachusetts Supreme Court justices haven’t averaged those numbers since the 1980s.

It “takes some time to accommodate to the change and become fully effective as a member of the bench,” so it’s best to nominate judges “you could get at least 15 years out of,” Carey said.

Marshall said she’s not concerned that judges are serving shorter and shorter tenures, saying that someone can serve “for a very short time and yet make an enormous contribution.”

Most of the justices currently on the Supreme Judicial Court are capable of serving nearly two decades. It’s too soon to know whether the younger cohort of justices will turn the trend around.

But it’s worth investigating whether pay, workload, and mandatory retirement are getting in the way of retention, said Daniel Medwed, a professor at Northeastern University School of Law.

“When there’s smoke, there’s often fire,” Medwed said.