The Carlisle Mosquito Online

Friday, January 15, 2010


Appealing Justice


Carlisle resident Justice Barbara Lenk (Photo by Eileen Blanchette)

A funny thing happened to Barbara Lenk on her way to becoming a college professor. As Associate Justice Lenk of the Massachusetts Appeals Court tells it, “I got my B. A. from Fordham in 1972 and went directly into the Yale Ph.D. program. I had finished my coursework and the language requirements and my thesis was half-written. Then I went job-hunting and realized that the market was terrible. I knew that at some point, I would have to help support my mom. I also didn’t like the idea of ‘publish or perish,’ no matter the subject or its relevance. So I took the LSATs and applied to the top four law schools.” Harvard chose her and she chose Harvard.

She described working on her Ph.D. thesis while at Harvard as “a welcome distraction and a blessing.” It was a relevant one as well – her topic was “Foundations of American Civil Religion,” the relationship between religion and politics in early American political thought, which meant studying early Supreme Court decisions.

Having spent almost five years in another demanding Ivy-League graduate program, she was not intimidated by the work load, demanding professors or more brilliant colleagues. As she put it wryly, “I was long past the stark realization that I wasn’t the brightest bulb in the circuit anymore.” Because she had chosen a new career path, she felt no pressure to pass her oral exams by defending her PhD thesis. Nonetheless, she received her PhD from Yale at the end of her second year at Harvard Law, and earned her J.D. (Doctor of Jurisprudence) from Harvard the next year, in 1979.

After graduation she joined Brown, Rudnick, Freed and Gesmer, eventually becoming a partner. She specialized in civil litigation involving First Amendment matters. In 1993, then-Governor William Weld appointed her to the Massachusetts Superior Court and in 1995, he appointed her to the Appeals Court.

Lenk lived in Dorchester until 1990 when she and her spouse moved to Carlisle. She laughingly recalled the first few months of transition from urban to rural living: “I was in the backyard, painting the doghouse, and I heard horses. My immediate thought was ‘Cops!,’ because the only horses you hear in Dorchester have Boston Police Officers astride them.”

Asked what part of her career she found most enjoyable, her face lit up. “I have been and continue to be blessed to have interesting work and interesting colleagues. I loved practicing law, arguing cases. When I was a Superior Court judge, I loved dealing with jurors. I tried to impress on them how critical their role is. I would always ask them ‘What would you want in a jury if it were your loved one sitting at the defense table?’”

“Now that I’m an Appeals Court judge, every case is still a way for me to learn more. By the time a matter gets to us, it has already been tried. We don’t see the defendant or the prosecutor or the jury or the lower court judge. We already have a fixed record. It’s our job to make sure that like cases are treated alike. What we are asked to decide is, ‘Was it a fair trial?’ Our cases become precedent for other cases, so we need to get it right.”

She went on to explain that when she reads the transcript from the trial, things take on life for her, because she has argued in court, on appeal and sat as a Superior Court judge. That kind of wide and deep experience is helpful, because, in her opinion, “the Appeals Court was and continues to be an expansive learning curve. We get all kinds of cases: criminal cases, Land Court cases, tax and business cases, termination of parental rights cases – it’s a very broad spectrum.”

Not surprisingly, it is not a 40-hour-a-week job. There are 24 Appeals Court justices and one Chief Justice. A panel of three judges hears 24 cases per month, and each judge writes one-third of the opinions. In total, the Appeals Court hears about 1,500 appeals per year. They affirm approximately 80% and reverse 13 or 14%. The remaining 6 or 7% are disposed of in other ways. (For example, in a case where there are multiple convictions, one might be upheld and two others reversed).

Although approximately one-third of all the cases are appealed to the Massachusetts Supreme Judicial Court (SJC), it accepts only about 40 per year for further review. As Lenk pointed out, “Sometimes it’s not that the SJC thinks we got it wrong, it’s that the case may turn on an issue they haven’t examined in a while, and they want to take a closer look.” The SJC’s net reversal rate is less than 1.6% of the Appeals Court’s decisions.

After 30 years of practicing law, it’s clear that Barbara Lenk is still excited, inspired and motivated by our judicial system and the laws of our land. She thinks that “it was serendipitous for us as a country that we had Founders who were so extraordinarily wise. They reflected the times that they lived in, and we must be mindful of that, but they gave us a very solid foundation with which to go forward. We need to be wise as well. There are issues that we [the judicial system] haven’t gotten our minds around yet – electronic devices in the courtroom, the Internet and privacy issues, libel issues, the list is growing. But I believe that it all has to work itself through the judicial system, and it will, in time.”

Asked if she had aspirations to a seat on the Massachusetts Supreme Judicial Court, Lenk didn’t answer directly, but explained the difficult appointment process. “When there is a judicial vacancy on any state court (Land Court, District Court, Appeals Court, SJC, etc.) there is a rigorous application process run by a judicial nominating committee in the Governor’s office. The application is very detailed, and it includes a deep probe of your professional training, background, personal issues, finances, etc. The joint bar committee of the various Massachusetts bar associations gets in on it too. A small list is sent to the governor and he or she decides whom to interview and appoint.” She paused, and then said with a smile, “So far I’m two for two.”

Was there anything she regretted in her career? “I wish I had done a clerkship. I have learned so much from my law clerks. Some of the courses they took and the things they studied weren’t even dreamed of when I was in law school.” She paused. “I hope they have learned from me as well,” she said reflectively. The evidence seems clear that she became a teacher after all. ∆

Justice Barbara Lenk will be part of a distinguished panel discussing “The [Supreme] Court and the Future” as part of the month-long Cover-to-Cover events around the themes of The Nine: Inside the World of the Supreme Court, by Jeffrey Toobin. See more information in the Coming Up section.

© 2010 The Carlisle Mosquito