This special edition of the BBA’s Issue Watch newsletter will address something that’s been on the minds of many of you this month—and very much on our minds as well: While we can’t know entirely what to expect, we know that significant policy changes are on the way from Washington, with the incoming Administration—and that many of them will touch upon issues central to our past work and core to the BBA’s mission … which probably bears reciting here:
We work to advance the highest standards of excellence for the legal profession, facilitate access to justice, foster a diverse and inclusive professional community, and serve the community at large.
I write to say that we will continue to stand where we have: in strong support of the rule of law, judicial independence, diversity/equity/inclusion, reproductive rights, access to justice, and the rights and worth of immigrants, the LGBTQ+ community, and other historically marginalized groups. Below, I’ll review some of that history, so that you know the lens with which we view some key policy areas, as well as where we’re coming from if and when we’re called upon to respond to new developments on each of them.
First, though, I want to remind you all of the words of BBA President Matt McTygue, who spoke at our Voices of the Bar event this month:
“As lawyers, we know that the rule of law, the very foundation of our profession and of democracy itself—is sacred, and it feels more urgent than ever to protect it. For all of us, the call to uphold justice and fairness doesn’t end at election outcomes. In fact, it’s precisely in times like these that our commitment to these principles must be unwavering. We are the stewards of the rule of law. We have an obligation to ensure that justice remains impartial, that rights are safeguarded, and that everyone, regardless of background or beliefs, receives equal protection.”
We have always taken that responsibility seriously—just as we have the duty to carefully consider any statement that we make, any new position we adopt, and any partnership we undertake with other organizations. None of that will change. With that in mind, here’s some background that you may be hearing more about in the new year…
Rule of Law & Judicial Independence
In the face of persistent attacks on the objectivity of individual judges, efforts to question the legitimacy of the judiciary as a whole, and (perhaps as a consequence) a decline in public confidence in the courts, we set up a working group to issue a report on judicial independence, which the BBA Council endorsed in 2019.
Defending the judiciary comes naturally to lawyers—if we don’t, who will?—but we wanted to offer some explanations to the public and to the media (as well as guidance to our members), in the course of making the case for an independent judiciary—particularly one that enjoys broad support and confidence—as no less than a bulwark of democracy.
The report offers recommendations to attorneys, bar associations, and the courts, while also arguing the importance of a diverse and inclusive bench and setting out five core principles:
- In our system of government, judicial independence is a concept that is fundamental to the rule of law and to the checks and balances the rule of law supports.
- “Rule of law” is a shorthand expression for a legal system in which disputes are predictably decided on the basis of established legal principles applied in a systematic and orderly way that is free from bias and under which the resulting decisions typically are followed voluntarily by those whom they affect.
- The vitality of the rule of law ultimately depends on public understanding of the value and importance of the concept coupled with public support for judicial independence.
- The BBA has an obligation to promote, support, and defend judicial independence and should use its education, public policy, and advocacy resources to enhance public understanding of the judiciary, demystify the judicial process, and explain to the public and elected officials the ways in which judicial independence is essential to protecting the rights and liberties of us all.
- The BBA should serve as a resource to the public and the press by responding to assaults on judicial independence in a timely and measured manner that distinguishes between, on the one hand, vigorous public debate and dissent and, on the other hand, misinformation and personal attacks that undermine the public’s respect for and confidence in the courts.
For better or for worse, we have had multiple recent opportunities to comment on this issue, including the criminal charges against a sitting judge for her handling of a non-citizen detainee, attacks on the Supreme Court, and (before adoption of the report) personal criticism of a federal judge.
Diversity, Equity, Inclusion & Belonging
Our extensive history of statements and actions in support of DEIB, stretching back decades, is highlighted on our web-site. We needn’t look far back into history, though, for instances when we’ve spoken out:
After the Supreme Court’s 2023 ruling that bars the use of race as a factor in higher-education admissions, we pledged that it “deepens our resolve to work toward a more inclusive legal community.”
“That goal may have become more difficult to achieve in the wake of today’s ruling,” we wrote at the time, “but we will work with our partner law schools and our College & University Law section to help ensure that this goal can be achieved in this new environment.”
We continue to assess the fallout, and weigh the ramifications, in higher-ed, labor and employment, and beyond.
We joined an amicus brief in a federal-court case—which may yet reach the Supreme Court—challenging a one-time admission policy for Boston’s elite “exam high schools” that was intended to enhance diversity.
Equal protection under the law has been a recurring theme for our amicus work at the state level as well—most recently in a case in which we argued that evidence of racial profiling should be admissible in probation-revocation hearings.
Reproductive Rights
When a draft was leaked two-plus years ago of the majority opinion in the Supreme Court’s Dobbs case, which would overturn Roe v. Wade, we released a statement to convey our concern, and we spoke out again once the final decision issued, expressing deep disappointment. In each instance, we observed that the ruling would “erode if not eradicate the constitutional right to privacy that has been a cornerstone of American jurisprudence for half a century,” warned about “potentially far-reaching implications for reproductive, privacy and LGBTQ+ rights,” and noted how rare it is for the Court to reverse itself in a way that takes away a long-standing right.
We also responded by creating a task force to consider and recommend actions that the BBA should take to help protect reproductive rights in Massachusetts. The group included representatives from higher-ed, health-care, the AG’s Office, and private practitioners in this area, and after careful consideration they recommended that the BBA adopt a set of principles:
Reproductive rights are essential human and civil rights. Every person should have the full ability to exercise their rights to reproductive autonomy and self-determination.
All people should have meaningful access to reproductive care regardless of race, gender identity, religion, sexual orientation, socioeconomic status, or disability. No person should be discriminated against or have their rights or human dignity diminished during or because of a pregnancy.
Massachusetts has enshrined the right to reproductive freedom in the Declaration of Rights and has further enshrined the right to seek and obtain an abortion in its General Laws and additional Executive Orders, and this body of law should be safeguarded.
Health care providers should be able to provide all patients with medically appropriate health care consistent with their training and abilities without undue interference by government.
Since then, we’ve had to point back to these principles on numerous occasions—including in response to a legal challenge to the FDA’s approval and regulation of mifepristone and to a dispute between the federal government and Idaho over the application of that state’s near-total abortion ban to hospitals covered by EMTALA. Because of the narrow way that the Supreme Court disposed of each of those cases last term, these are still live issues. We may also face an effort to revive enforcement of the Comstock Act as a back-door national abortion ban or to recognize fetal personhood.
In 2014, to bolster the case for greater funding toward civil legal aid in the Commonwealth, we assessed the scope of the need for legal services, measured its impact on the justice system, provided input from clients who’ve benefited from legal aid and from the business community, and sanctioned four independent econometric reports that collectively demonstrated the positive return on investment at the state level from civil legal aid by looking into DV cases, housing cases, and federal benefits.
In 2020, we revisited our calculations of the benefits from legal representation in housing cases specifically, in support of our advocacy for a program to provide such access statewide to qualified tenants and owner-occupant landlords.
We’ve met with some success on both fronts, with the Legislature and Governor showing strong support for civil legal aid and including in this year’s state budget the creation of an access-to-counsel pilot program for housing, albeit only as a pilot thus far. Whatever happens, we’ll continue to advocate in the coming state-budget cycle for further increases to legal services and for making that pilot program permanent.
We’ll also be in Washington this spring as part of ABA Day, where the focus is always on federal funding for legal services. The President-Elect previously filed a budget that would’ve zeroed out that appropriation, and there’s no reason to think he won’t do so again next year.
Immigration
In 2018, at a time when the BBA had been facing a rapidly changing landscape on federal immigration policy—as we may again be on the cusp of now!—and presented with a variety of individual issues for potential comment or action, we established a working group to consider a set of principles to use as a framework for these decisions. The BBA Council endorsed the working group’s report and the following principles:
Immigration is a defining feature of the American experience. Immigrants play a critical role in the civic, economic, and cultural life of our city, state, and country.
No person’s rights or human dignity should be devalued on the basis of immigration or citizenship status.
The constitutional right to due process and equal protection, guaranteed to every person regardless of immigration or citizenship status, must be protected and enforced.
Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.
We have pointed back to these in the years since in our statements on issues such as:
- Political attacks on the Haitian community in this year’s Presidential-election campaign
- Changes to asylum policy
- Immigration enforcement in and around courthouses
- Proposed changes to the public-charge rule
Though there will be pushback on some, maybe all, of these fronts, we know how to respond because we’ve been here before. And we hope you’ll keep in mind this history as well as President McTygue’s call “to uphold justice and fairness.”
