Vacancies Prime Top Massachusetts Court for Liberal Makeover

Massachusetts’ highest court is poised to become even more progressive on issues including reproductive rights, immigration, and criminal justice after Gov. Maura Healey (D) fills two impending vacancies just a year into her term.

Justices Elspeth Cypher and David Lowy’s early retirements from the seven-member bench give Healey an unexpected opportunity to put her liberal stamp on the Supreme Judicial Court, whose current justices were all appointed by her moderate Republican predecessor, Charlie Baker.

“This is an opportunity for Governor Healey to fashion a court that is maybe more left of center than it is,” and to cement the court’s liberal bent “if the political winds do change” in the legislature down the line, said Daniel Medwed, a professor of law and criminal justice at Northeastern University.

Cypher and Lowy are both calling it quits years ahead of the mandatory retirement age of 70.

Healey’s Mark

The state’s first female and first openly LGBTQ governor will likely seek to build a court that’s diverse “by every metric,” including gender, race, ethnicity, sexual orientation, practice experience, and judicial philosophy, Medwed said.

Since her tenure began in January, Healey’s judicial appointments to lower Massachusetts courts “seem to be trying to recognize the lack of diversity in the court system,” said Martin Healy, chief legal counsel for the Massachusetts Bar Association, who also serves on the Joint Bar Committee on Judicial Appointments, a group that reviews applicants prior to their nominations.

In October, she appointed criminal defense attorney Tracey Duncan to serve on the Superior Court in Western Massachusetts, the second person of color to serve on that bench in state history.

Lowy has been “a moderate, right-leaning voice on the court,” Martin Healy said, so the governor’s pick for his seat will be an opportunity to push the court further left.

Anthony Benedetti, chief counsel for the state’s Committee for Public Counsel Services, said the organization hopes the governor “looks to either a former public defender or someone who has a background in civil rights to fill the two spots open on the bench.”

“Those are the attorneys who have a front-row seat to the many injustices that take place in our legal system and will have fresh ideas on how to remedy them,” Benedetti said.

Deep Network

Healey’s deep ties to the Massachusetts legal community give her an upper hand in the judicial selection process.

Healey “knows the legal landscape and the judicial landscape probably better than any prior governor that has ever sat,” said Beth Boland, a partner at Foley & Lardner LLP and former president of the Women’s Bar Association of Massachusetts.

A Harvard and Northeastern Law School alum, Healey served as state attorney general for eight years and was earlier a prosecutor and an attorney at Boston-based firm Wilmer Cutler Pickering Hale and Dorr LLP.

Boland said it is possible Healey goes with an “unconventional choice” of a public defender, lawyer in private practice, or an in-house counsel rather than picking an Appeals Court judge.

Healey will have the help of a five-member Supreme Judicial nominating commission, which she established in September to identify candidates to fill Cypher’s seat. That group will also evaluate candidates for Lowy’s seat, said Karissa Hand, Healey’s press secretary.

Early Retirements

Cypher said she will step down in January to pursue teaching at Boston College Law School, and Lowy plans to leave in February to become general counsel of University of Massachusetts.

“From what I understand, they were totally separate personal decisions by each justice,” Healy of the Massachusetts Bar Association said. “There’s nothing that indicates that there’s any dissatisfaction or anything else going on at the court,” he added.

Medwed said the retirements make him wonder if “there is something about the burdens of the court that might be motivating people to retire or leave early,” and raise questions about the ideal age for a nominee.

Both Lowy and Cypher were nominated in their late 50s and are currently in their mid 60s.

Medwed noted “relatively high turnover” in the past decade has caused significant institutional knowledge to depart.

“You want to have a court that’s balanced in every way, and that means age and duration of tenure, too,” Medwed said.