In Chambers with Vermont’s
Supreme Court Justices
Denise Johnson & Marilyn Skoglund

By Margaret Michniewicz

Justice Sandra Day O’Connor was the first woman on the United States Supreme Court, nominated in 1981 by President Ronald Reagan. Here in Vermont, it was a decade later that a woman joined the state’s highest court when Governor Madeleine Kunin appointed Justice Denise Johnson of Shrewsbury in December of 1990, followed by the appointment of Montpelier’s Marilyn Skoglund in 1997 by Governor Howard Dean. Today, Johnson and Skoglund comprise the Vermont Supreme Court with Associate Justices Brian L. Burgess and John Dooley, and Chief Justice Paul L. Reiber.

During their tenure, they have heard cases ranging in nature from the mundane to the heart-wrenching; with some, the attention of the entire nation has been riveted on their decision, such as Baker v. State of Vermont, the landmark ruling on gay marriage in the Green Mountain State.

Justices Johnson and Skoglund allowed Vermont Woman to “approach the bench” for a conversation about their respective careers and a range of other – sometimes surprising –subjects (Justice Skoglund gamely persevered despite a bout with laryngitis). Here are excerpts from our interview.

Vermont Woman: Do you swear to tell the whole truth?
Justice Johnson and Justice Skoglund: [in unison, laughing] No!

VW: What have you found most rewarding about a career in law and specifically your role as state Supreme Court justices?

DJ: The most rewarding thing in my present job, I think, is the public policy questions that come before the Court – I’ve always been interested in the policy side of law even when I was a lawyer; I was interested in the development of the law and sitting on a state Supreme Court gives you an opportunity to help shape the development of the law and to look at intellectual questions.
MS: As a lawyer, I loved litigation – I was thrilled to find out I could go into court, be extremely prepared and ready and go into battle – which is what trials are – with the same strengths and weapons as any man. That was a revelation that I hadn’t anticipated. But primarily now, I’m just so thrilled I found the profession of the law because I get such a kick out of thinking about the law, arguing about the law, reading cases, and writing in a – hopefully – clear and articulate manner about the law. I’m just so lucky to have found my little place here in the legal community.

VW: And I understand, Justice Skoglund, that you read for the law – what age did you take that track and know that you wanted to get into the law?
MS: [long pause, then laughs] I’m counting on my fingers! Almost 31. I was a mom and I was working at Goddard College in the records department as an editor.

VW: Are there things that either of you miss about being a lawyer or, when you were in the Attorney General’s office, things you miss about what you could do in that role that you can’t do now?
DJ: It’s much more fun being on this side of the bench than the other side of the bench. And I think it’s a good deal easier! It’s harder in the sense that you’re not just advocating a position… you hope to be right and you’re trying to reach a reasoned decision considering everything that the parties are putting in front of you and you dig up yourself – and that’s a little different from just advocating a position… But that’s easier, I think, than coming before a court or trying to convince five people that your position is the right one – and also trying to achieve a result for your client at the same time. I mean, so much is out of your control when you’re a lawyer because whether you’re at the trial court or the appellate court somebody else is making the decision. And that’s… that’s part of the insecurity maybe that makes law practice fun for some people and engage in the battle and win those battles.

VW: Did you, Justice Johnson, always want to be a judge?
DJ: From a fairly early point on in my legal career I wanted to be a judge – I don’t think I grew up thinking I was going to be a lawyer or a judge! [laughs] But I ended up in law school and when I was working in the AG’s office, that’s when I think I decided that maybe I’d like to move to the bench.

VW: Given your respective backgrounds and the interests and passions you have for certain – I’ll use the word ‘issues’ here but I know that you cannot be issue-based as a judge – but given what you bring to the table – how does that inform your decisions?
MS: I don’t think my own personal opinion about anything has anything to do with what the law says the decision has to be…
VW: I know you need to be objective; but are there any ways – and maybe the answer is no…
DJ: …The answer is yes! The answer is yes. I think that every judge who sits on this court or any court brings to that bench the total sum of their experience in life, their experience in the law, what kind of a lawyer they were and so on, and all of that informs your judgment about the cases that come in front of you – you can’t divorce yourself from your history and nobody really expects you to. That doesn’t mean, at the same time, that you’re not objective about the issues that you see; but when you have some touch with an issue that has been – before the court – for example, Justice Skoglund had a lot of involvement with workers comp law – and when a workers comp case comes to the court she’s going to have a long background that she brings to the table on that. When an employment discrimination case comes to the court – I spent a lot of time in employment discrimination – I have a long background that I’m bringing to that. And even if you get away from legal issues, just our situations in life – if you are a parent you are going to have some feeling about domestic relations cases that come to the court and how parents are acting or interacting with their children – this is a good thing about judging, not a bad thing. And you always, as Marilyn says, you have to set aside your personal feeling – but to deny, I think that those things help make up your judgment and your worldview would be wrong… That is the biggest argument for why we want people on our courts who reflect the community, why we want diversity on the courts, gender diversity, racial diversity, background diversity, conservatives and liberals. I never want to sit on a court where everybody thinks just the same way or has just the same background. It’s the diversity – especially on the appellate bench – that makes good decisions happen.

VW: Are there many other women Supreme Court justices at the state level across the U.S.?
DJ: There are quite a few. Incidentally, I was just reading something recently from the [American Bar Association] about the relative pay of men and women lawyers – and if you just take a median income across the profession women are at about 50 percent of men’s pay – then if you compare like sectors of the profession – say, the judiciary – even in the judiciary we make less money than men. I think that’s probably because – it’s just a guess on my part – because there are more women in the lower echelons.

VW: Pretend that you’ve been asked to give a recommendation for the other to be named to the Vermont Supreme Court – describe her style and what she would potentially bring to the Court, based on what you know now.
DJ: Well I actually made a recommendation when Marilyn’s name was under consideration. And I said she brings a lot of experience to the bench, she’s had trial bench experience and she’s unaffected by political ideology; she looks at every case anew with open eyes and with fresh eyes and she’s very impartial… you should put her on the Court!
MS: And I would say about Justice Johnson she’s got one of the greatest brains on the bench – she’s thoughtful, intelligent, careful, and a great legal scholar – and she writes like a dream. She understands the analysis that is necessary, she doesn’t cut corners, she doesn’t ever give a case short-shrift, she’s thorough, she’s precise, and she’s usually right! [laughs]
DJ: We don’t always agree – there’ve been some cases we’ve dissented…
MS: …but I always know she knows what she’s talking about. [dramatic pause] She may be wrong…!
DJ: There’s a lot of room for choices in the law and for different viewpoints.
MS: And if it wasn’t a close question, it wouldn’t be up here.
it’s a question of more than one legitimate viewpoint.

VW: To what degree can you discuss past cases and the impact either of you has had?
DJ: It’s difficult for us to talk about past cases because they’re not our own decisions – even when we are the author, it’s an opinion of the Court, and so I feel it’s dangerous to go there because you’re bound to say something beyond the opinion and it may not have been the opinion of any of the other writers.
MS: I agree; it’s the opinion of the court and – it’s interesting when we’re researching cases – say the parties are relying heavily on a case the Supreme Court decided ten years ago – you’ll even find the five of us disagreeing slightly on what it exactly says – what exactly is the holding of that case – how far did they go ten years ago, so, that’s another example of why we don’t discuss cases that have come out of this court because I may think I understand exactly why we said what we said what we meant to accomplish and why those words were chosen but another justice might have a slightly different take on it. So it’s too dicey… And it’s also such a collaborative effort up here, it’s hard to say who has shaped the case most. The drafter of the majority, of course, has a huge amount of influence but as it gets into circulation and we all throw our concerns into it, it becomes a group effort and a melding of the positions…

VW: How much notice do you have about the cases you’ll be hearing?
DJ: We don’t have a lot of prior notice… we are reviewing cases maybe a year in advance in order to put them on our regular docket or our “rocket docket” … But that’s a review that the justices basically oversee somebody else’s review of – and there are several levels of review. But, when the cases are assigned to us, we get them probably just a few weeks before the cases are heard and so, before the arguments, we’ve got the briefs and whatever independent research we do prior to arguments. I’d have to say, at least for myself, and I think this has to be true of the other justices here: the great amount of work goes into the post-argument process because that involves greater care of writing the decisions, doing further research, and so on.

VW: Explain the process you go through when hearing cases.
MS: After we’ve heard oral argument we’ll come back to this conference room and whoever’s had the case assigned to their chambers will start the discussion and explain how they think the case should be [decided] and why; and then we go around, by seniority, and everybody gives their opinion. That’s when we do the discussion of the case. There may be people who are not quite on board yet with the way I think a decision should come out and they’ll wait to see what my first draft looks like when I send it out into circulation. So, the first conference after oral argument is the best opportunity to find out where the other justices are – what their position is vis a vis, how you think the case should come out and then, try to accommodate it if you can or understand that there will be a dissent; and after conference then the dialog goes on in writing.
Before oral argument my clerk and I have read all the cases – I’ve read all of the cases – but she and I have read all the cases assigned to our chambers. And she and I will sit down and go through each issue that’s presented and try to lock down my position on the law on that issue – so we have discussions, we exchange notes, etc. and then we come, we hear oral argument, I come here and discuss it with the other justices and then I go back to chambers and talk to the clerk again – it’s exactly like we decided it or we need to go heavier on this point or we don’t have to address that point, nobody wants to go there… and then, her job is to craft a first draft or I’ll craft a first draft and we’ll trade – back and forth for editing purposes, but no, the clerks don’t inject their own thoughts into this; they’re following the directions from the court.
DJ: it is their [challenge], however, if they get out into that research and they find that the arguments that people are making are not holding up or that there’s another direction which other courts have followed in this [area] to bring that to our attention, our consideration and sometimes we can take that into account; we can’t completely change the case that comes before us but sometimes we can affirm the [trial] court below on a different rationale or take into account other considerations that the parties didn’t bring to us and sometimes, the parties don’t bring everything to us that they should and we have to do more work on the case – in a well-briefed case they have probably found every argument that’s ever been made in the case anywhere and all the arguments are presented to us.

VW: Is there a humorous case you’ve been involved with?
MS: Before I came on the bench there was a case that was decided about a dog, and the court split 3-2 on who the dog belonged to and that case invoked such passion in court – and what’s funny is – I joke that if I had been on the court then it would have been a 3-2 split the other way! So it’s funny when cases really get us jazzed up.

VW: Can you say if there’s a decision you are most proud of, or that has been most gut-wrenching?
DJ: There have been lots of cases that have been gut-wrenching – and gut-wrenching for different reasons. It’s gut-wrenching when you have to take an unpopular – what you know is going to be an unpopular [decision] – but you have to adhere to the Constitution and, in your view the Constitution has been violated, maybe that involves a reversal of a criminal conviction – for a person who is probably otherwise guilty – it’s a very difficult thing for the public to understand.
Other times – of course the gay marriage was a very controversial decision… there were three opinions in that case. One of the things I try to do is to really explain the rationale in a way that people will understand at least where it’s coming from. Sometimes there are cases people say they don’t like the decision but what they’re really referring to is they don’t like the result! And so it’s important for us to kind of explain how we get to our results and then the chips just have to fall where they may – I mean, you can’t write for public popularity. But, are those cases gut-wrenching and agonizing? Yes, they are!

VW: During Baker, to what degree were you concerned about safety?
DJ: Well, it was wise to be concerned about safety – but, in fact, we had no trouble at all. [People] who were demonstrating and so on were really pretty respectful of us and didn’t invade our space and we didn’t get too much mail and so on – it was really the Legislature that took the hit.

VW: you used to sit on the steps having lunch, but not so much anymore?
DJ: We don’t do that anymore. I think probably our security person – if he had known about that (laughs) he would have advised against it. It’s… it’s kind of a different time, we have a – you know I actually have to say that I cried – pause – [heavens] I’m not going to do it now, am I? (laughs) on the day that the metal detector was installed… that was very upsetting to me.
It was after we had an incident at the Vermont Law School in which someone who had expressed disapproval of us at retention hearings, then came to the Law School and approached the bench with papers and so on – he was arrested and so on and so forth – but, I think that was kind of a wake-up call for us that we really needed better security and we did and we needed to have a metal detector and we needed to secure our backdoors. And so now we’ve done that, and it makes sense but… it was the end of an era. So no, we don’t sit on the front steps anymore.

VW: To end on a lighter note, any humorous anecdote about life on the bench?
DJ: I would just say I hope we don’t take ourselves too seriously…
MS: …we do laugh a lot.
DJ: We enjoy our exchanges and they’re not without humor because I would say at least four of us are wise-cracking individuals and always have been and so, we just can’t resist…

MS: It’s a very collegial court – we laugh a lot together, usually at one another’s expense.

Margaret Michniewicz is Editor of Vermont Woman and can be reached at editor@vermontwoman.com.