By Daniel Cox

The Marshall Of Self-Help

Having spent her youth in South Africa observing – and fighting – the daily injustices of apartheid rule, Massachusetts Chief Justice Margaret Marshall now works to ensure that all Americans are empowered to make their own case in a court of law.


When Margaret Marshall was a girl, the London Times newspaper would arrive on her family’s doorstep each morning with gaping holes where articles should have been. As if plucked from the pages of an Orwellian nightmare, government censors policed the thoughts of South Africans during the country’s dark days of apartheid rule.

Raised in Newcastle, South Africa, Marshall could have had it far worse. She could have been black. Being black meant having no right to own property, or go to school, or vote, or travel freely within the country. 

Like many young South Africans, Marshall did not fully comprehend the scope of South Africa’s bigoted tyranny. That is, until she took a trip to America as a high school exchange student in 1962, when President Kennedy occupied the White House and the U.S. civil rights movement was in full swing. “I read books that were banned back home, books I hadn’t been able to read before. I was able to think freely and speak freely, and I went back to South Africa with a taste of what democracy can be,” she says.

Marshall returned home forever changed by her experience. She now fully understood the evil that apartheid represented, and stamping it out became the focal point of her life. South Africa had become rife with civil unrest in the 1960s. Student groups at Marshall’s alma mater, Witwaterstrand University, held protest after protest opposing apartheid. Marshall led a student organization for three years called the National Union of South African Students, which was dedicated to ending oppressive minority rule and achieving equality for all South Africans. 

“There was no access to justice in South Africa,” Marshall recalls. “There were a few courageous barristers who agreed to represent people charged with political crimes, but, by and large, if you were a black South African, you had no justice. The death penalty was imposed in vastly disproportionate numbers. Many of the offenses were applicable to black South Africans only.”

In 1968, after working passionately but unsuccessfully to effect change in South Africa, Marshall returned to the United States and settled in Massachusetts. Not surprisingly, she pursued a career in the law. She earned her degree, was later elected president of the Boston Bar Association, and ultimately earned a seat on the Massachusetts Supreme Court. In 1999, Marshall was named Chief Justice, making her the first woman to lead the oldest appellate court in the Western Hemisphere in its 310 years of existence.

Mindful of her past, Chief Justice Marshall speaks out frequently about the importance of achieving equal justice for all Americans. She has become a leading national voice on pro se issues and professes deep concern that so many currently lack the ability to effectively represent themselves in court. That is why Marshall led a panel at the Annual Conference of Chief Justices this July in Rockport, Maine, dedicated to making it easier for litigants to press their own claims. This focus helps explain why Marshall is fond of Judge Judy, why she doesn‘t decry Court TV’s gavel-to-gavel coverage, and why she has precious little patience for public officials who don’t take the duty of ensuring “justice for all” as seriously as she does.

“All of us have a responsibility to make sure that the oxygen of democracy – the justice system – functions properly,” she says. “I have no tolerance for people who say the justice system is compartmentalized, that lawyers do one thing, judges do another… All of us have to work together to make sure that the system functions well for everyone.”

How do you feel about the progress that your native South Africa has made in implementing the rule of law since apartheid was abolished?

One of the great tragedies in South Africa [during apartheid] was that the law was viewed as an instrument of oppression. Today, South Africa has a sparkling new constitution with a constitutional court highly regarded by the international community. Leaders of the political parties are abiding by judicial decisions issued by the court. Things do not change overnight. It is difficult to transform an entire system, to train prosecutors, police and defense attorneys how to function within a constitutional system. That is not easy, but that is the task South Africa has set for itself. The fact that the law will begin to be evenly applied makes an enormous difference.

Here in America, what originally drew you to the issue of helping self-representing litigants? 

It was really because I became aware that there were so many people who couldn’t get access to a lawyer and also realizing that we live in an age where people increasingly educate themselves about the law. We are a how-to society, and so we have focused, for good reason, on people who cannot afford a lawyer. But there is a whole other piece – people who choose not to have a lawyer. I was interested in thinking of the most creative way to make sure the system functions well for everybody.

What do you think has been the cause of the increasing number of self-represented litigants in courts across the United States? Has their been an influx of pro se clients?

I think it depends on the area of law. In the family law area, we have simplified the law. If you combine the simplification of the law, the expense of legal representation and lawyers understandably charging reasonable fees, and people being able to get access to information in the family law area, I think … there’s a general sense that people can at least take care of the preliminary pieces and not have to pay a lawyer. 

Also, our culture has put a great deal on television, in particular, in which people think they are watching real live trials, so they think they could do it. That’s wonderful. Our historical tradition is that people have a right to represent themselves; it’s a fundamental right. The fact that you cannot afford a lawyer does not mean you cannot get access to a judge. Whether it’s the old form of L.A. Law or the new form of Judge Judy and gavel-to-gavel coverage of cases, there is a great deal more familiarity with the legal process. In an open democracy, I think that’s a good thing. The challenge for the courts is how do we make sure that justice is delivered? Our challenge is to make the courts more accessible instead of putting barriers in the way.

You mentioned Judge Judy. Don’t you think that courtroom shows like this run the risk of misrepresenting the ease with which litigants are able to navigate the legal system and obtain a desirable outcome without counsel?

To some extent, I think all of us know that television shows are not the real world. At the same time, I like the fact that we live in a society where the message we are promoting is that if you have a serious dispute, the way to solve that dispute is through a court of law. That’s a wonderful message to give to everyone in our society: that you don’t resolve disputes by going and knocking your neighbor’s block off. 

I suppose I have a more tolerant view of the proliferation of [courtroom shows]. Yes I understand that [producers] sometimes slant the legal process. But I like the idea that you can have a useful discussion about an issue, that you can let people tackle both sides and let them base the decision on the law. The more we can involve people in that process, the better off we are. 

How would you respond to the argument that by encouraging more litigants to represent themselves, you make the LSC and legal aid offices increasingly irrelevant?

Nothing could be further from the truth. Given that so many people come to court to resolve disputes... Given that we, the government, tell people that they have to come to court to get a divorce, to get a guardianship appointment, to terminate a lease...yet we know that everybody cannot access a lawyer. We have a long way to go – a very long way – before there will be any case that can be made that legal services can be cut. Quite the contrary, the funding of these programs helps lawyers educate [self-represented] litigants to make sure that valuable public resources – judges’, clerks’, interpreters’, and court reporters’ time – are being utilized in the most efficient manner. That can only ultimately benefit the public. Every dollar that goes to legal services, every dollar that goes to helping people in this way, is a dollar very well invested.

How important do you believe collaboration is among the bar, courts and legal services advocates is in dealing with this issue?

I like to think of it this way. We are all responsible for the delivery of justice, whether it’s legal or social organizations, court personnel, legislatures that fund us, or judges applying the law. All of us are responsible for the delivery of justice. 

We have a justice system that is the envy of the world, but it is a justice system that requires constant nurturing, constant tending and caring, to make sure it is meeting new challenges. All of us have a responsibility to make sure that the oxygen of democracy – the justice system – functions properly. I have no tolerance for people who say the justice system is compartmentalized, that lawyers do one thing, judges do another, legislators do a third, and the executive branch does a fourth. All of us have to work together to make sure that the system functions well for everyone.

As a judge you have an obligation to remain impartial. Yet you also have an obligation to see that justice is served. An individual who cannot afford a lawyer or gain access to legal information is at a distinct disadvantage in our adversarial system. How can judges reconcile the seemingly disparate duties of maintaining a certain level of equality between disputants while remaining impartial?

The judges that face this most immediately are the trial judges, and there have been a variety of ways they have dealt with it. No judge that I know will stand aside when injustice is being done. And although being represented by a lawyer sometimes will tilt the scales, it is not always tilting the scales in favor of the person who has counsel.

I think what judges do is make sure they get the factual information from the litigant. Then the judge has to apply the law as fairly as he or she can. I’m not suggesting that it’s easy. I am suggesting that it’s not impossible to balance these two things. All of us, I think, feel that to have litigants represented by lawyers is the preferable way to go, but we hide our heads in the sand if we say this is the only way to go. Our fundamental right is to have access to the courts, whether or not you are represented by a lawyer. It is our responsibility to see that justice is done. 

What do you think about the famous refrain? “A man who is his own lawyer has a fool for a client?”

I think that it is helpful to have people who know and have experience in the law and are familiar with its many twists and turns. I think the statement is meant to point to the fact that a lawyer brings a kind of independence, a more measured approach. On the other hand, when I was a lawyer I found that in dealing with my clients, they are the more articulate because they are more deeply invested. Some of my best ideas came from clients. I think like all aphorisms, it initially makes sense. But when you pry it open, it doesn’t. If you have a lawyer simply to have a lawyer, there are many clients who may be better advocates for themselves.

What will it take for the United States to finally realize the promise inscribed above the U.S. Supreme Court building, declaring "equal justice under law"? Can this realistically be achieved?

We have come a very long way. When you think from an international perspective, we are seeing so many countries struggle to even develop systems of justice. Each of us has to recognize that equal justice is our individual obligation, an ongoing commitment that each of us has to make. I don’t think it’s important if it is achieved during my lifetime, so long as I know that during my lifetime we have moved forward in reaching that goal.