Just Bob: Associate Justice Robert J.

Cordys Reflections Upon Retiring from

the Massachusetts Supreme
Judicial Court

By: Judi Goldberg*

F
ormer Associate Justice Robert J. Cordy began his career as a lawyer
in 1974 as a defense attorney for the Massachusetts Public Defenders
Office.1 From 1978 to 1979, he served as a Special Assistant Attorney
General and the deputy commissioner in the Department of Revenue,
responsible for overseeing the investigation and prosecution of tax crimes.
Justice Cordy then served as associate general counsel of the newly formed
State Ethics Commission, an independent agency charged with enforcing
the states anti-corruption and financial disclosure laws. In 1982, Justice
Cordy was appointed an assistant United States Attorney and became
Chief of the Public Corruption Unit for the District of Massachusetts. From
1987 to 1991, he was a partner at Burns & Levinson. From 1991 to 1993, he
served as Chief Legal Counsel to Governor William Weld. In 1993, Justice
Cordy became a partner at McDermott, Will & Emery, working there until
his appointment to the Supreme Judicial Court in 2001. He has been a
lecturer at Harvard Law School and currently serves as an adjunct faculty
member of New England Law | Boston, where he teaches advanced
criminal procedure.
Justice Cordy retired from the Court2 in August 2016 and has returned
to private practice at McDermott, Will & Emery. During the past fifteen
years, he has worked under the auspices of the State Department and
several regional non-governmental organizations with judiciaries in
Russia, Turkey, Ukraine, Uzbekistan, Kosovo, the Gambia, and

* Judi Goldberg has been practicing law in the private and public sectors in the Boston area

since 1996.
1 This and the following biographical information have been provided by Justice Cordy.
2 The Supreme Judicial Court is referred to herein as the Court.

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2017 Just Bob 91

Afghanistan. On those excursions, he was often tagged with the moniker

Justice Bob. When people at Justice Cordys new professional home ask
how he would like to be addressed, he responds simply with, Just Bob.
I have had the great fortune to work with Bob Cordy twice, first as an
associate at McDermott, Will & Emery where he was the managing partner
and later as a law clerk during 2001, his first full year as an Associate
Justice on the Court. He has been my mentor and friend in the years since.
On a professional level, he has a brilliant legal mind, an encyclopedic
knowledge of state government, an apparently effortless management
style, and the ability to bring people with diverse interests to agreement.
On a personal level, he is consistently kind, thoughtful, and attentive to
each person with whom he interacts. He is equally at ease with very
important adults and very inquisitive three-year olds. As it always is, it
was my pleasure to sit down with him and reflect together on his fifteen
years as a judge.

Governor Weld appointed you to the Supreme Judicial Court in

2001. How did you feel in the weeks and days leading up to your
first day on the job?

I knew that I brought twenty-seven years of experience as a criminal

defense lawyer, prosecutor, civil lawyer, and adviser to the Governor
[William Weld]. I had worked extensively with the legislature and had
taught law school. All in all, I had a collective group of experiences that
shaped how I viewed problems and problem solving. The opportunity to
try to be a good judge among other good judges was pretty exciting, not so
much daunting, but so different from any of my prior experiences.

What qualities do you believe make a good judge?

Earlier in my career, my view of judges came largely from appearing in

front of them. Later, while I was counsel to Governor Weld, I had the
opportunity to see judges from a different perspective. As I participated in
the judicial selection process, I spent a lot of time interviewing hundreds of
candidates. Through those interactions, I developed a much better sense of
what judges need to do, the qualities that they need to bring to their job. I
learned that those qualities include good temperament and diligence and
intelligence and common sense. Those qualities go a long way to make a
good judge and, in turn, a strong judiciary.
92 New England Law Review Vol. 51 | 90

Could you describe the types of cases and issues that came before
the Court?

As the Court selects the great portion of its docket, not surprisingly it
has in front of it cases that are not easily resolved. By definition, the cases
that the Court takes pose problems that havent been fully solved, that
have been solved in conflicting ways by lower courts and needed some
guidance, that involve new laws, or that address constitutional principles
that havent been applied to evolving circumstances. It wouldnt make
sense for the Court to hear cases if the judiciary on all levels were in
agreement, or if a case was clearly resolved by precedent or the clear
language of a statute.

Of the cases that came before the Court, could you talk about some
of the jurisprudential issues that were particularly important to
you?

Some of the issues that I was particularly concerned about and focused
on involved the proper definition and application of the separation of
powers. Specifically, I felt that it was important to ensure not only that the
Court did not begin to exercise Legislative and Executive functions, but
also that the Legislative and Executive branches were operating as best as
they could within their proper spheres. It was not an issue in all cases, but
it arose in some very important cases. I hope that my voice and the voice of
a few others raising that issue ensured that it was properly thought
through.
The other issues that I wrote about from time to time and cared about
deeply were free speech, free press, and public access to the courts and
court records to ensure that we have a transparent judiciary.

You mention a transparent judiciary. Could you talk about one of

the cases that you authored, In the Matter of the Enforcement of a
Subpoena,3 which would appear to militate against transparency
by creating a judicial privilege?

The question in that case was whether there was a privilege that
protected the judges deliberative process from the Commission on Judicial
Conducts inquiry into his or her conduct. The privilege would essentially
have shielded the judges internally deliberative thinking and the

3 972 N.E.2d 1022 (Mass. 2012).

2017 Just Bob 93

conversations that the judge may have had with a law clerk as the judge
was developing his or her decision and opinion.
I greatly enjoyed writing that opinion because I was able to go back to
the beginning of our legal and judicial culture in Massachusetts. To inform
my thinking, I studied and incorporated ideas from John Adams and
others. It was personally and professionally satisfying to see how this idea
had historically been part of our culture, although never articulated as a
judicial deliberative privilege. I strongly believed that the concept was an
important one to judicial independence; it is important to judges and so it
was important to me.
I believe that one can surely look at the performance of judges; how
they handle themselves in the courtroom, how they treat the litigants and
the lawyers that come before them, and the complete records of their
decision-making. All of these sources of information provide the necessary
transparency. However, that one further step of wanting to know exactly
what a judge was thinking and how a particular decision evolved could be
a dangerous way to try and intimidate judges and create a very
unfortunate dynamic in the judiciary. We do not want judges to worry that
at any time they could be questioned about their thought processes, as
opposed to their final decision. In other words, the judges decisions speak
for themselves and any conduct that third parties would see is fair game,
but judges internal thinking is not. That was so interesting and certainly
doesnt come up very often, but it was an incredibly satisfying opinion to
write.

Could you talk about other satisfying parts of being a judge?

I think the thing that was so liberating was that I was now being paid
to work very hard to get things right. I didnt have a client, except for the
law, and the notion that I could take as long as necessary to get as deeply
as I needed to get to the right answer was liberating and professionally
satisfying.

You performed a significant amount of administrative work for the

Court. How did you find that work?

It became clear to me very early on that the quality of judges on our

courts was very high and that they had all of the qualities that I thought
were necessary for a strong judiciary. It also became clear, however, that
how the court functioned as an institution really needed a remake. And
when I say the court I mean the judiciary as a whole. We had progressed
94 New England Law Review Vol. 51 | 90

significantly from 1978 when the courts were consolidated4 until I joined
the Court in 2001. But the needs of the people using the courtsthe
customers of the judiciaryand the evolving demands of the law were
going to require a remake of our internal structure and strengthening of the
management of the institution as a whole.
I was able to join then-Chief Justice [Margaret H.] Marshall, essentially
as her junior partner, in trying to devise a methodology and strategy to
move the court forward. This was very exciting for me because I was
beginning to play two roles: learning to be a judge on an appellate court
and learning what was necessary to improve the culture and management
of the court system. Part of the challenge was to ensure that these
improvements would be ongoing and would outlast my tenure as a judge.

Could you describe how that work helped to change the judiciary as
a whole?

The work that we did was bolstered five years ago when members of
the court, the bar associations, and others were able to get legislation
passed that changed the structure of the management of the courts.5 The
Legislature created a new positionCourt Administrator of the
Massachusetts Trial Court. That person works hand-in-hand with the Chief
Justice of the Trial Court.6 These two people work collaboratively on
creating a system that is better able to support judges and that is more
efficient, more effective, and that integrates both a better internal
atmosphere and external sense of satisfaction.
The greatest evidence of the success of these efforts is the change in
court culture. It is now more a customer-oriented culture with people
working much more collaboratively, no matter what his or her role in the
system is. It is now much more of an integrated system, focused on the
consumer and creating a better, more efficient experience. The courts are
now ensuring that cases are managed so that they are moving in a timely
fashion, measuring outcomes so that the courts can make better decisions
on everything from sentencing to staffing to professional development and

4 The Court Reorganization Act, 1978 Mass. Acts 478, created a Trial Court to be
administered by a Chief Administrative Justice. Among other things, this law mandated
administrative consolidation of the courts to make personnel and resources available to all of
the courts on a more equal basis.
5 2011 Mass. Acts 93.
6 In addition to creating the new role of the Court Administrator, it also changed the name
of the Chief Justice for Administration and Management to the Chief Justice of the Trial Court,
giving that position the overall responsibility for trial court judicial policy. The Supreme
Judicial Court appoints both the Court Administrator and the Chief Justice of the Trial Court.
2017 Just Bob 95

training. It is just a completely different place internally.

The courts still face technology challenges and a changing workforce;
much of the workforce is moving toward retirement and new employees
are coming in. The courts need to have the technological skills for the next
generation.
Collaboration and technology in our court workforce has been
critically important to meeting the budget challenges faced by the courts
over the last ten years. The work in our trial courts that used to take 7,800
employees now must be accomplished by about 6,400 employees. While
the ability to do most of the work with fewer employees has enabled the
court to withstand withering budget reductions, court budgets remain a
real problem. There is not enough money for the courts to do everything
that the public now expects them to do. The courts have to struggle every
year to get the funds just to keep their current operation moving forward.
And thats unfortunate.

With competing judicial and administrative responsibilities, how

did you manage your time?

One of the keys to being a good judge, no matter what court you are
on, is to develop a regimen, a way to structure the judicial and
administrative work. The flow of the work is such that you cant get
behind; you really need to stay on top of the work and to organize your
time. For me, the structure came from the fact that each year the Court
deals with about 1,000 applications for further appellate review (FARs) and
100 applications for direct appellate review (DARs). The Court also hears
and decides approximately 200 cases with written opinions every year.
Preparing for those cases alone required the review of thousands of pages
of briefs and documents each month.
On the administrative side, I was the chair of the Supreme Judicial
Court Rules Committee, which was very active during my tenure as we
considered a whole series of new rules about plea proceedings, new rules
about public access to information, the question of whether Massachusetts
should adopt the Uniform Bar Examination, whether and how to develop a
program of practicing with civility, a new code of judicial conduct, and a
new code of professional conduct. There were so many things going on
that required constant attention from members of the Court; the
administrative responsibilities were a very important part of what we did.
Managing both sides of the work required a lot of discipline.
96 New England Law Review Vol. 51 | 90

Could you talk about the impact that effective oral and written
advocacy had on your work?

I recently calculated that I read more than 10,000 briefs during my time
at the Court and heard at least 3,000 oral arguments. Judges on the
appellate level are not just teachers; they are also students of the law.
Appellate judges have to decide cases in so many different complex areas
of law and they need help to understand the essence of a case and how it
fits into the larger scheme of the facts and the law. Strong oral and written
advocacy are essential to that process.
With regard to written advocacy, there is a big difference between a
brief that helped me get ready to decide a case and one that was more
confusing than helpful because it was not well-structured. There are a
couple of tests to determine if a brief is well-structured. While I was
reading a brief, it was a problem if I had to constantly go back several
pages to figure out how what I just read related to what I read before. I just
didnt have the time to do that because I was simultaneously working on
many cases as well as getting ready for oral argument. I needed to be
educated quickly so I could feel comfortable talking and asking questions
about the facts and issues in the case.
Fact sections are extremely important in many cases. At the end of a
well-organized fact section, I would have a pretty good sense of what a
case was all about and maybe even how it ought to be resolved. But some
lawyers didnt pay that much attention to this section and would just
reiterate the testimony in the case, witness by witness. I would look at
these types of fact sections and wonder how any of it was relevant to the
issues at hand. It seemed to me that some attorneys would throw all of the
facts from the case into the brief without thinking about whether they were
relevant, with the hope it would all be sorted out later.
I am a big fan of oral argument and I would try very hard not to decide
a case before I had heard from the lawyers. Of course, I may have had
some preliminary views about a case because Ive been around for a long
time and decided a lot of issues. As a result, I often had some sense of
where a particular case fit, especially in the criminal arena. However, I
would always wait to hear oral argument.
If you were to ask me what makes a really good oral argument, I
wouldnt be able to tell you. But you know that youve heard one when
you walk off of the bench. You realize that you hadnt really thought about
the issues in quite that way, or that the lawyer had raised a really
important point or argument.
At oral argument, youd better come with your best shot. You have to
think about the one or two ideasthree at the mostthat the judges
should hear and understand. You want the judges to know what makes
2017 Just Bob 97

this case different, what makes this case important. Youve got to come in
with that as your plan, not with the plan to regurgitate everything that was
in your brief.
If you go into an oral argument and start off by saying that you have
three points to make, the court will know that, and at some time during the
argument someone will likely ask you to get back to your second (or third)
point. Having the two or three things about your case that make it different
gives you structure, even though you also know that you are going to have
to be somewhat flexible in how you present them. Another important point
is to answer questions directly. It is nice to get straightforward answers to
questions, as opposed to evasions. As Justice [Ralph] Gants would say after
a long-winded answer, Now please answer my question. Be
straightforward and be direct. Dont duck a question, even if you use an
answer to get into another argument.
A good appellate lawyer will be thinking about the one thing that he or
she does not want the court to ask. You should have thought about the
hardest question that the court could ask and have thought through an
answer to that question.
Finally, as someone who has heard a lot of arguments, please dont be
obnoxious. Theres just no upside to being obnoxious.

You mention that judges are students of the law. Could you
explain what you mean?

All of the cases that I worked on required a great deal of focus but the
issues were as broad as our lives are, as broad as the law is. Cases involved
everything from the environment to housing, to zoning, to trusts and
estates, to business, to criminal law, and administrative law. There was an
incredible range of issues and I had to be prepared to learn about a lot of
things that I hadnt been exposed to in my other life as a practicing lawyer.
And this was true for all of us. We each had things that we were most
comfortable with. Personally, I was most comfortable in the area of
criminal law because I had practiced it and taught it. And although the
questions were sometimes very cutting edge and not easily resolved, it was
an arena that I felt comfortable working in and could work more efficiently
than elsewhere.
Other cases involving environmental law, trusts and estates, or
complicated property disputes really required me to learn a lot of the
substance of the law and the legal context in which the issues were being
raised. Those types of cases were, by definition, challenging. A lot of
important tax cases came before us. I wrote a number of tax opinions that I
think were very important to the community because they essentially
decided how certain types of business would be conducted in the future.
98 New England Law Review Vol. 51 | 90

At the end of my tenure, I wrote two environmental cases, both of which

were quite difficult. They involved statutory schemes that hadnt been
applied to the circumstance at issue. Working through those cases was
both very challenging and important.

How did the Justices work through cases together?

The interactive role between the Justices in the decision-making

process is one of the most important, exciting, and intensive parts of being
on the Court. It is really true that regardless of the name on the paper, each
opinion is the product of the Court. It may be that the writer was the most
influential in the crafting of the opinion, but the final opinion comes only at
the end of a long process.
The process begins as the Justices prepare for the oral argument. Once
the days arguments have concluded, the Justices immediately go in to the
consultation room and begin a systematic discussion about their
preliminary thoughts. The Justices go around the table so that everybody
has a chance to give his or her thoughts. The opinion is then assigned to
one Justice who will write the first draft.
A month or two later, the opinion writer will circulate that draft to all
of the Justices. The Justices will examine the opinion intensively and
determine whether they believe that the opinion deals with all of the issues
satisfactorily. At the next full-day consultation, the Court discusses all of
the opinions that are ready to go to the next step of the process. We always
had a complete and detailed discussion by every Justice on every opinion.
The opinion may have then gone back for a redraft, or one or more of the
Justices may have said that they were going to write a concurrence or a
dissent. In that case, all of those new drafts would be circulated and would
come back the following month for further examination and cross-
pollination. Sometimes when I look back on it, I cant even remember if I
wrote a particular opinion or if I was just passionate about a particular
issue during the consultation interaction. That is why I say that all of the
opinions are really the product of the whole Court.
The full-day consultation meetings were some of the most intense
intellectual experiences that I have ever had. Each of the Justices brings his
or her own independent views to each case, but with a sense that they have
to collaborate. Each Justice knows that the Court must act in a way that is
not only correct, but will be helpful without going too far. The Court is also
aware that it is setting the tone for what may come next because many
cases are followed by another and yet another case.
This process requires independent thinking and a bit of courage. It isnt
a go-along-to-get-along experience; each Justice has experiences, intellect,
and important ideas to contribute to the conversation. It is truly a
2017 Just Bob 99

collaborative enterprise, which I found to be very rewarding. I learned so

much from my colleagues and I think that I helped to build on that with
my own contribution. There is very little bitterness or anger involved; it is
all an intellectual exercise that hopefully leads to a good result.

What will you miss the most about your colleagues?

I will miss the intensity of our intellectual engagement on a regular

basis. I will very much miss the relationship that I have had with my law
clerks. I enjoy working with younger lawyers and watching them play an
increasingly important role in the decision-making process. I also love
watching them go on and do all kinds of interesting things. That makes me
very happy and proud.

What kinds of work have your former law clerks done?

Many of my law clerks have left to go to large, excellent law firms;

thats not uncommon and thats a good thing. And many of them have
then gone on to join public service in state and federal prosecutors offices
and agencies. Thats been my professional life, moving from the public to
private sectors and back again. I like to see that people think that that is a
positive thing because it is a good thing personally, professionally, for the
bar, and for the Commonwealth.