Death of Term Limits—Obituary I
The Boston Globe
Thursday, July 17, 1997
The fall of term limits - and of the SJC
By Jeff Jacoby
Once, the Supreme Judicial Court of
Massachusetts was renowned for its independence and integrity. Few
courts in America could match the SJC in legal brilliance or
scholarly eminence. Presided over by such men as Isaac Parker,
Lemuel Shaw, and Oliver Wendell Holmes Jr., the SJC for many years
cast one of the most imposing shadows in American jurisprudence.
But the SJC has declined with age.
Instead of independence and integrity, the state’s high court is now
known for its pliancy and deference to political insiders. In a
Boston Globe interview last January, Chief Justice Herbert Wilkins
observed that he doesn’t mind nepotism and patronage in the judicial
system, since they help judges curry favor with state legislators.
"We want to speak kindly to the
Legislature," he said, conceding that lawmakers like to stash
friends and relatives on the court payroll. "I don’t know that
people ought to be discriminated against because they happen to be
related to a politician." He expressed the hope that he would be
judged by his ability to coax the Legislature into authorizing a
$685 million courthouse bond bill and a new computer network for the
When the chief justice of the SJC
regards the delivery of pork as his highest priority, we are a long
way from Oliver Wendell Holmes.
Which brings us to the SJC’s 6-0
decision last week to kill the Massachusetts term limits law.
The ruling was a violent insult to
Massachusetts voters, who adopted the law by initiative on Election
Day 1994. It was also a grave setback for democracy and the rule of
law. For in essence, the SJC endorsed the proposition that if the
Legislature wishes to stonewall the voters and track mud through the
state constitution, no court will interfere.
For six years, Massachusetts
politicians have treated term limits proponents with derision and
deceit. The proponents, by contrast, have behaved scrupulously. In
1991 they drafted a constitutional amendment limiting legislators
and statewide incumbents to eight years in office. After their
language was validated by the attorney general, they collected
75,000 signatures to put the measure on the ballot.
But they first had to go to the
Legislature, which - under Article 48 of the Massachusetts
Constitution - must vote on proposed amendments in a joint session
before they can go to the electorate. As long as 25 percent of
legislators back an amendment, it is submitted to the voters.
But when the joint session convened on
May 13, 1992, the term limits amendment never got a vote. The
presiding officer, Bill Bulger, then president of the Senate,
arranged to have it sent to the bottom of the agenda. When the joint
session convened again on June 10, Bulger refused to bring it up.
When it reconvened on June 24, he again refused to allow a vote. And
so it went for seven months, through joint session after joint
session, until the legislative clock was about to expire.
Stunned by the Legislature’s arrogance,
term limits advocates turned to the Supreme Judicial Court. In
December 1992 they asked the court to order the Legislature to take
the required vote. The SJC refused. Under the "separation of
powers," it held, it could not compel lawmakers to obey the
On Jan. 4, 1993, the Legislature met in
its final session. No business was transacted. No vote was held.
When the time ran out, the amendment was dead.
Angrier than ever, the term limits
reformers resolved to start all over - only this time with a statute
instead of an amendment. (Proposed statutes can go to the voters
without a legislative vote.) What they devised was an initiative
that technically would not bar an eight-year incumbent from seeking
reelection, but would deny him a spot on the ballot. An incumbent
wanting to stay in office would have to run as a write-in candidate
- and would get no salary if he won. It was a convoluted path to
term limits, but it was the only way to do it without having to
amend the constitution.
Once more, the petitions went out. Once
more, 75,000 signatures had to be collected. Once more, legislators
denounced the initiative in vitriolic terms. (One senator, Stanley
Rosenberg of Amherst, compared term limits advocates to Adolf
Hitler). But in November 1994 the measure finally appeared on the
ballot, becoming law by vote of the people.
There the matter should have ended. But
in Massachusetts, it is not the people who have final say. It is the
One year after the election, a phalanx
of legislators asked the high court to declare the new law
unconstitutional. To ensure the justices’ compliance, the lucrative
bond bill so coveted by Chief Justice Wilkins was put on hold. When
the court heard oral arguments in the case last May, it signaled
loudly and clearly that it was prepared to kill the law. The bond
bill was promptly passed.
Last Friday the SJC mowed the statute
down. It ruled that politicians’ terms can be limited only by
amendment. And if lawmakers "defy the requirements of the
Constitution" by obstructing an amendment? Too bad, said the
justices. Supporters of term limits will just have to live with
When courts refuse to uphold the law,
they become worse than useless. The SJC, long fallen from eminence,
is now just a tool for political hacks. If Oliver Wendell Holmes
could view his successors, he would turn aside in disgust.
Jeff Jacoby is a Globe columnist.
Death of Term Limits—Obituary II
The Wall Street Journal
Thursday, July 17, 1997
Editorial: Tea Time in Massachusetts
(Written by John Fund)
It is a debatable question whether
Massachusetts, the cradle of American liberty, is today governed by
its people or by an arrogant elite that ignores the public’s wishes
and the state’s constitution.
This month, the state’s Supreme Court
voted unanimously to invalidate a 1994 law - passed by voters - that
limited members of the state Legislature and statewide officials to
eight years in office. The court ruled that in barring officeholders
from the ballot after eight years the law actually changed the
"qualifications" for offices, and required a constitutional
Term limit proponents are in shock.
They indeed tried to put a constitutional amendment on the ballot,
and collected more than 100,000 signatures to do just that. But the
initiative needed the backing of 25% of the Legislature to get on
the ballot. In a brazen power play, then Senate President William Bulger blocked any vote.
On 11 separate occasions over seven
months he asked a joint session to consider various amendments, but
used parliamentary sleight-of-hand to avoid a vote on term limits.
Facing a deadline, a frustrated Governor William Weld called the
Legislature into session and asked them to vote on term limits.
Instead, Senator Bulger adjourned the Legislature, invalidating the
signatures and forcing term limit proponents to collect new ones to
put a less binding statute on the ballot. That resulting law is the
one that has failed the court’s scrutiny.
Five years later, the Supreme Court
agreed as part of its ruling that the Legislature violated the
state’s constitution. But it will not enforce that mandate and says
it’s up to the Governor and Legislature to do so. If voters don’t
like that, Chief Justice Herbert Wilkins suggested term limit
proponents elect a new Legislature. Easier said than done, since
incumbent protections mean that more than half the state’s lawmakers
ran unopposed last year. The court’s decision effectively means that
80% of the current Legislature that faced being term-limited out of
office in 2002 can stay as long as it wants.
Citizen activists in Massachusetts
wonder what kind of democracy they live under. Over the past 15
years, their highest court has repeatedly struck down voter-approved
laws to limit Legislature’s pay, perks and length of sessions. "We
just have political bodies, except some wear black robes and others
wear suits," charges Dorothea Vitrac, who led the fight for term
Undaunted, she and other activists plan
to try again in two years to place a constitutional amendment before
the state’s imperial Legislature. At that time, whoever is Governor
will have the constitutional power to keep the Legislature in
session until it votes. In 1992, Governor Weld called legislators
into session, but did nothing when they skipped town without voting.
We hope his successor makes a greater effort to side with the voters
against the pols.
The Massachusetts court’s ruling was
based on the state’s peculiar circumstances, and term limit laws in
other states continue to be upheld. Still, the irony here is hard to
miss. More than 200 years after Massachusetts patriots threw tea
into Boston Harbor, their governing betters are telling them that
their votes just don’t pass muster.