High courts in a system of separated powers: Conflict or cooperation? A view from Massachusetts
The separation of powers is an institution which lies at the core of the American political system. The theory underlying this method of structuring power is that it will commonly produce conflict. On the other hand, separating powers, with each branch performing the task for which it is best prepared, can be an efficient way to structure the allocation of responsibilities in a political system. This dissertation asks which of these theoretical assumptions is most prevalent when the separation of powers is put into action. It analyzes the role of the state supreme court of Massachusetts, the Supreme Judicial Court, in that state's political system. The activities of this court from the 1970s through the 1990s were analyzed to determine the degree to which it moved outside traditional judicial roles and then to determine how such activities are viewed by the primary policy making body in a democracy, the legislature.
This study found that the Supreme Judicial Court of Massachusetts was involved regularly in making policy for the state through statutory interpretation and through the development of both common and constitutional law. Contrary to the widespread assumption underlying the separation of powers, however, this activity has not generated major conflict. In questions as important as the right-to-die, the death penalty, funding for abortions, and governmental tort immunity, the state's high court has been a major player in setting public policy for the citizens of Massachusetts, sometimes by itself and at other times in cooperation with the legislature. While there were a few challenges leading to conflict in these years, and some examples of an efficient allocation of powers leading to cooperation, the system of separated powers in Massachusetts led more frequently to avoidance of difficult political questions, happy to allow the appointed justices of the state's high court to lead the way.