The Yale Law Journal


Justice “Promptly, and Without Delay”: Court Reform and Judicial Independence

18 Mar 2008

The Massachusetts Constitution of 1780, the world’s oldest, still-governing written constitution, guarantees to all “[e]quality under the law” and the “impartial interpretation of the laws . . . by judges as free, impartial and independent as the lot of humanity will permit.” It also guarantees the “impartial . . . administration of justice,” and justice obtained “completely, and without any denial; promptly, and without delay.” The reason John Adams, the principal drafter of the Massachusetts Constitution, was concerned with equally available substantive justice needs little explication. But why would Adams also concern himself with, and raise to constitutional dimension, the administration of justice, the quotidian business of filing and docketing cases, shepherding them through the court system, and delivering to the litigants final judgments and orders?

The answer, in my view, is that, although “justice” is not tangible, the indicia of justice are. Justice, as delivered, is built little by little, piece by piece, detail by detail, each part affecting the whole. For the parent anxiously awaiting a judgment on custody or child support, for the business that loses the use of funds while waiting for an award of monetary damages, or for the victim of crime who is denied some sense of closure because of endless continuances in a criminal trial, justice administratively delayed truly is justice denied. Public faith in our independent courts simply cannot be sustained if even the highest level of substantive justice is delivered in a manner that renders it practically useless. For this reason, the Massachusetts judiciary, in collaboration with the elected branches and the organized bar, recently has embarked on a massive effort to revise the administrative structure and culture of our courts. In this essay, I briefly examine the challenges we face, the vision and strategies we have adopted to address those challenges, and the measurement of our progress on the road to court reform.

At least since the 1970s, Massachusetts lawyers, elected officials, and community leaders have agitated for changes to a system of judicial administration largely unchanged since its inception in the nineteenth century. Yet when I became Chief Justice in 1999, court administration in Massachusetts still clung fast to its roots. Most cases in all seven departments of our Trial Court were docketed by hand. It was not uncommon for civil cases to take five or even ten years to wind their way through some of our courts. File losses and years-long delays in transcribing cases were hardly uncommon. With tales of administrative inefficiency piling atop each other, public confidence in our courts was in substantial danger of being leached away.

In response to this crisis, the Justices of the Supreme Judicial Court established in August 2002 a Visiting Committee on Management in the Courts to assess our managerial practices and policies and to make recommendations to improve the administration of justice in the Commonwealth. Only two of the committee’s nine members were lawyers: a federal judge and a partner in a major law firm. The remaining members were entrepreneurs and academics who collectively had decades of experience planning for and implementing change as successful managers of large complex institutions, both public and private. Their report, issued in March 2003, was unsparing. Finding that “[t]he impact of high-quality judicial decisions is undermined by high cost, slow action, and poor service to the community,” the committee described the administration and management of the judiciary as “uneven at best, and oftentimes dysfunctional,” hampered by poor leadership and low employee morale.

But the committee did more than point out serious administrative failures. It suggested a blueprint for radical institutional change, grounded on managerial best practices: clear lines of leadership and accountability, the adoption of measurable goals, and openness and transparency in assessing progress. The Justices adopted the committee’s recommendations almost in their entirety. We appointed a new Chief Justice for Administration and Management of the Trial Court (CJAM), Chief Justice Robert A. Mulligan, in large part because we knew him to be eminently qualified by talent, temperament, experience, intellect, and energy to fulfill our mandate of institutional reform. The CJAM wasted no time in securing the full commitment of the seven departmental Chief Justices, as well as the clerks and registers, to his reform agenda, and these leaders, in turn, worked to establish a culture of performance in their respective arenas.

Objective goals and measurements were, and remain, essential to their efforts. One example: with the Justices’ approval, the CJAM established rational staffing models to ensure that courts were staffed appropriately for their workloads, not arbitrarily under- or overstaffed as they were previously. With the assistance of national expertise in court staffing models and input from judges and staff, the CJAM gathered data demonstrating, for the first time objectively, that staffing resources were not allocated rationally and uniformly throughout the Trial Court departments. For instance, the CJAM’s staffing model found that the Holyoke District Court, with eleven employees, was operating at only 61% of its critical staffing needs. Armed with such data, the CJAM was able to reallocate resources to bring the court up to 78% of its critical staffing needs – not perfect, but better. With the addition of five positions in the Springfield District Court, staffing at 84% of critical needs improved to 93%.

The Justices also directed the CJAM to adopt objective goals and measurements to quantify the Trial Court’s progress in other areas. For the first time, time standards were established across all Massachusetts Trial Court departments, for all civil and criminal matters. With the Justices’ approval and with the expert advice of the National Center for State Courts, the CJAM adopted metrics to track four essential elements of judicial administration: clearance rates, time to disposition, age of pending case load, and trial date certainty. The CJAM reports progress toward each metric in each Trial Court department on a quarterly basis.

With the establishment of these metrics, Massachusetts courts, for the first time, could chart their progress on a continuum toward excellence. For example: the clearance rate metric measures whether each court is keeping up with its incoming caseloads. Clearance rates need to be more than 100% for the number of cases disposed of to exceed the number of cases filed. For 2006, the Trial Court set an aggressive clearance rate goal of 110% for all court departments. The result: the average departmental clearance rate was 116%. Another goal established for 2006 was to reduce the load of aged cases in the Trial Courts by an ambitious 33%; in fact, the number of aged cases was cut from approximately 177,000 to 87,500, for a reduction of 50.6%. We know our courts are expediting the delivery of justice because the data tell us so. This is not the stuff that garners headlines or quickens pulses. But it is part of the nuts-and-bolts of doing justice in a manner that engenders public confidence. With this data, we can not only measure progress but also state our case for additional resources to the state legislature in the clearest terms.

Transparency is a key aspect of both judicial accountability and our administrative reform. The annual reports of the Board and the CJAM’s quarterly reports on performance metrics for each of our Trial Court departments are publicly available in print and on the websites of the Supreme Judicial Court and the Trial Court.

Massachusetts courts still have a long way to go to complete our reform of court administration, but our efforts have already measurably enhanced public confidence. Over the last several years, with the cooperation of thousands of attorneys around this state, my court has administered more than 82,000 individual judicial evaluations. These judicial evaluations, mandated by statute, assess each of our trial court judges in sixteen separate performance areas, such as management of the courtroom, demeanor, and timeliness of written decisions. The second round of evaluations is expected to be completed in 2008, but the results obtained to date reflect positively on the Massachusetts judiciary. In the wake of aggressive court reforms, all the trends are in the right direction, with the already high number of positive evaluations actually increasing from the first to the second round.

Another vote of confidence has come from the Court Management Advisory Board, an appointed body established by the legislature in 2003 to assist the judiciary in its administrative transformation. In its second annual report, this group of disinterested professionals reported “being struck by the energy displayed by local court leadership and the commitment to achieve progress on” management reforms, even in the face of heavy workloads and limitations on space and resources. Members of the Board noted “great accomplishment and progress” in establishing, reporting, and analyzing objective data on court performance. I expect such measures of confidence to increase as administrative reforms continue.

Jerome Frank remarked many years ago that “[t]he law is not a machine and the judges not machine-tenders.” To be sure, some aspects of judging, such as wisdom and compassion, cannot be quantified, and the basic guarantees of impartial substantive justice and equal access remain constant. But we can ill afford to permit the delivery of justice to stagnate, either from indifference or parochialism. Our constitutional democracy cannot tolerate that fate for its independent courts.

Hon. Margaret H. Marshall is Chief Justice of the Massachusetts Supreme Judicial Court.

Preferred Citation: Margaret H. Marshall, Justice “Promptly, and Without Delay”: Court Reform and Judicial Independence,117 Yale L.J. Pocket Part 172 (2008),

Click here to listen to an audio version of Justice "Promptly, and Without Delay": Court Reform and Judicial Independence, read by Embry Kidd.