Final ruling nears for SJC's Hennessey
Career seen as one of integrity
Some years ago, Appeals Court Chief Justice Allan M. Hale interviewed for the top judicial job in Massachusetts. He promptly suggested they pick somebody else: Edward F. Hennessey.
Then associate justice on the Supreme Judicial Court, Hennessey eventually was named chief justice. Now, more than 13 years later, Hale has not been disappointed. "I think he will go down as one of the great chief justices of the Supreme Judicial Court," says Hale, who retired in 1984.
In 10 days, Hale's friend turns 70, the mandatory retirement age for judges, ending the era of the Hennessey court.
Hennessey, however, plans to stay active by writing, teaching and assuming a leadership role with the state Ethics Commission.
With his successor yet to be named, Thomas F. Maffei, one of Hennessey's former law clerks and current president of the Massachusetts Bar Association, put his legacy this way: "He has come closest to being all things to all people."
It is a fitting description of a legal career that has spanned more than two decades as a judge, and another 18 years as a practicing attorney. As chief of the SJC he has presided during a time of change, sometimes tumult, and mounting pressures on an often beleaguered court system.
Through it all, lawyers and judges say, Hennessey has served as an example of integrity, prodigious energy and service to the courts and bar associations that is unmatched. "I'm not sure the public is aware of what he has done," says Suffolk University law professor Marc G. Perlin, who follows the court.
As one of six men and one woman who ultimately shape and interpret the law in Massachusetts, Hennessey is generally regarded as a moderate in philosophy. ''He is very sensitive to Bill of Rights-type guarantees," says Marc D. Greenbaum, another Suffolk professor. "But a lot of his jurisprudence involves a very careful weighing of competing interests. He's not an absolutist."
"It's true that he is generally compassionate about civil rights and civil liberties and the problems of poverty, but the abortion issue is an exception," said Marjorie Heins, a civil liberties lawyer now teaching at the Boston College Law School.
A consistent foe of the death penalty, he generally votes with the antiabortion faction of the court, which may now be a majority with the addition of three judges by former Gov. Edward J. King.
Unlike the US Supreme Court, the SJC is not known for a lot of dissents. But in key cases in which the court ruptures into a 4-3 vote, Hennessey often has been the swing vote. Quoting a former colleague on the court, Hennessey says: "When justice requires, I'm liberal. When justice requires, I'm conservative."
Still, under Hennessey's stewardship, the court in some areas has voted to extend individual liberties under the state constitution beyond those afforded under the US Constitution by the federal high court.
"I think that's exactly the point," says Arnold Rosenfeld, chief of the state's public defenders. "He was able to bring the disparate views together in a very positive way to use the state constitution as a basis for rulings."
But assigning and writing decisions -- and he wrote as many as any other justice -- is only part of the job. Hennessey, as an agent for the court, has worked hard for various court reforms, and particularly efforts to gain more judges, support staff and upgraded facilities.
In some ways, Hennessey resembles the man who appointed him to become chief justice, Gov. Dukakis, although Hennessey is a Republican and Dukakis a Democrat. Both appear to favor change through consensus, rather than through individual, dramatic moves.
While it may have more to do with his style than substance, his critics complain that change and reform often have come too slowly. One prominent defense lawyer, who generally admires Hennessey, described him as someone who does not like to "rock the boat" and prefers change without upheaval.
A state judge, who calls his feelings "95 percent positive," says Hennessey sometimes is reluctant to wade into controversies, particularly those affecting the lumbering court bureaucracy, with 5,500 employees, including 300 judges, whose independence and egos can frustrate unanimity.
But unlike the governor, Hennessey's authority and power as an individual are not as clear-cut, and many say it is unfair to lay the ills of the system at any one person's feet. As the chief of the highest court, he is akin to the chairman of the board, with the general superintendency powers over the system granted to the entire court, not the chief.
"The criticism focuses here and it should," says Hennessey, speaking in his office, its walls lined with bound opinions. "We do have our finger on the pulse and if things are not working, the focus should be here.
"One person, one man or woman, sitting in this chair, can only do so much."
John F. Burke, who has known Hennessey for 20 years and is the SJC's adminstrative assistant, says Hennessey has the knack for sensing "how far out front you can move without stirring opposition that could defeat you. He has a very fine sense to gauge that. How far to move, when you can move."
Adds US District Judge William Young, an admirer and a former state judge: ''His view of the way to progress is to catch flies with honey, not vinegar."
Hennessey, the son of a machinist, was born in South Boston and baptized in Gate of Heaven Catholic Church, but by age 6 his family had moved to Newton. After college at Northeastern University he joined the Army, and eventually won promotion to captain with a Bronze Star for combat service in the Mediterranean theater.
It was in the Army that Hennessey's interest in the law took seed. Because of a shortage of lawyers, some laymen were called upon to help prosecute and defend those accused in court martials. Hennessey was one of them, and his first case was to defend a man charged with rape; he was found guilty of a lesser crime. When he came out of the service, Hennessey went directly to law school and in 1949 graduated with honors from Boston University.
He would make his mark as a civil litigator, a trial lawyer in civil cases, many of them as a defense lawyer in personal injury cases. He was bright, well-prepared, knew the law, and had a pleasant manner that came across to juries, says Paul Sugarman, a plaintiff's attorney who opposed Hennessey in court. "Most of the time, he came out better than I did," quips Sugarman.
Hennessey also would gain recognition as a law school lecturer and legal scholar, writing law review articles, editing the Massachusetts Law Quarterly and co-authoring a text on the practice of automobile law. In 1967, he became a judge, appointed by Gov. John Volpe to the Superior Court. Four years later, Gov. Francis Sargent made him an associate justice on the SJC. And Dukakis chose him for the top spot when Chief Justice G. Joseph Tauro retired in 1976.
Maffei was his first law clerk in the SJC, when Hennessey started work as an associate justice in the fall of 1971.
Almost daily, toward late afternoon, Hennessey would sit down with his law clerk and talk. Where the judge-law clerk relationship can often be akin to employer-employee, Hennessey became a mentor, partner and friend, says Maffei. Each year, he assembles his clerks for a barbecue at his Needham home, donning an apron that reads "Too Hot To Handle," and flips hamburgers on the grill.
He has made sacrifices to become a judge, a life that can be lonely. He has not set foot in his old law offices, for fear it would appear to be a conflict of interest, showing favoritism.
When he does not delve into the bulging briefcase he brings home, or accept yet another bar association invitation, Hennessey enjoys tennis and reading. Often in the middle of the night, he is up reading Barbara Tuchman or Joseph Campbell, the late mythologist. Referring to his wife, Betty, he quips: "She realizes she's married to an eccentric, and so do I." They have a daughter, Beth Ann Hennessey, a psychology professor at Wellesley College.
His genial, patient, low-key style on the bench is the same, no matter who appears in front of him. Janis M. Berry, a Boston lawyer and former law clerk for Hennessey in the mid-1970s, remembers a man dressed in a shiny iridescent coat, who had no lawyer but stepped forward to argue his own case nonetheless, alongside the buttoned-down lawyers in three-piece suits. While Hennessey had no authority to help the man, he patiently listened and gave him some advice. ''When the guy sat down, I think he felt he had been done justice," said Berry.
Lawyers talk about the court as one where they enjoy arguing their cases, not fearing a battering by arrogant jurists. "He has set the tone, and I think that is important," said Jonathan Brant, a Boston lawyer and former assistant attorney general. "I think he full well knows that his power -- as my kids would say -- is awesome," says Berry. "They decide fates . . . When you're near him, you have never felt what is sometimes the arrogance of power."
When Hennessey was sworn in as chief justice by Dukakis in the House chambers, he said the courts were in trouble, particularly with too few judges shoveling sand against a tide of cases, particularly in the civil courts. Some of the same problems that threatened the court system in 1976, when he was elevated to chief justice, afflict the system today. But things have changed.
Court reorganization has centralized the fiefdoms and created the office of a chief administrative judge. Standards have been put into place to help cut backlogs, and legislation has been passed to add more judges and upgrade courthouses. Many say time will tell, with most of the new judgeships yet to be filled, and the system to cut the civil court backlog still raising serious questions. Criminal caseloads also are burgeoning. But many say the framework is in place, even if Hennessey will not be there to help carry them through.
Allan G. Rodgers, director of the Massachusetts Law Reform Institute, goes a step further, crediting him with championing the legal rights of the poor and challenging lawyers to tackle the social problems of the age.
"My feeling is that he was suited to the times and to the institution he was leading, and his gradualist consensus-building approach probably achieved as much as if we had a chief justice more aggressive or tried to move things at a quicker pace," says Rodgers. 