A special sitting of the Supreme Judicial Court was held at Boston on June 7, 2011, at which a Memorial to the late Justice Benjamin Kaplan was presented.
Present: Chief Justice Ireland; Justices Spina, Cordy, Botsford, Gants, Duffly, and Lenk; and Retired Supreme Judicial Court Chief Justice Margaret H. Marshall.
Chief Justice Ireland addressed the court as follows:
Good morning. On behalf of the Justices, we welcome Justice Kaplan's daughter, Ms. Nancy Mansbach, and her husband Charles; Justice Kaplan's son, James Kaplan, and his wife, Brooks Robards: and many other family members and friends of the Kaplan family who are present this morning. I would also like to welcome back to this court retired Chief Justice Margaret H. Marshall and retired Associate Justices Ruth Abrams, John Greaney, Charles Fried, and Judith Cowin. I note the presence of Chief Justice Sandra L. Lynch, Chief Justice Phillip Rapoza, retired Chief Justice Christopher J. Armstrong, Chief Justice Robert Mulligan, several chief justices of the Trial Court, and many justices of the Appeals Court and the Trial Court Department. I welcome back many of Justice Kaplan's law clerks, who are seated to my left. Many have traveled long distance to be here to pay their respects to the man who I know was a powerful influence on their lives. The court now recognizes Attorney General Martha Coakley.
Martha Coakley, Attorney General, addressed the court as follows:
May it please the Court. As the Attorney General of the Commonwealth of Massachusetts, it is my honor to present, on behalf of the bar of this Commonwealth, a memorial and tribute to the late Benjamin Kaplan.
Justice Kaplan served this Court with distinction as an Associate Justice from 1972 until 1981, when he reached the constitutional retirement age of seventy. He was recalled in 1983 to serve as an Associate Justice of the Appeals Court, sitting on that court for roughly two decades and writing opinions into his nineties.
He was born on April 8, 1911, in the Bronx, the third of four children. His father, Morris, operated a candy store and worked as a textile cutter. Justice Kaplan graduated from DeWitt Clinton High School when he was only fourteen, and graduated from the City College of New York four years later, at eighteen. He followed his best friend to Columbia Law School, graduating in 1933. Justice Kaplan then entered private practice at the New York firm of Greenbaum, Wolff and Ernst. There, he worked with the ACLU’s Morris Ernst on United States v. One Book Called Ulysses, 5 F. Supp. 182 (1933), persuading the Federal courts that James Joyce’s then-scandalous novel was not obscene.
While in New York, Justice Kaplan met Felicia Lamport, a woman described simply as "astonishing." Widely known as a satirist and poet, Felicia wrote for The New Yorker and The Globe, among other publications. They married during World War II, just days before Justice Kaplan was called up for Army duty, which he put down to "the general cussedness of life and the unfeelingness of the Army bureaucrats." Despite this inauspicious beginning, the marriage was long and devoted, animated by their mutual love of books and art. Felicia died in 1999. The couple had two children, Jim and Nancy. They also had four grandchildren, three step-grandchildren, and five great-grandchildren.
In 1945, Lieutenant Colonel Kaplan was working in procurement at the Pentagon. Just weeks after the German surrender, he was tapped by Justice Robert H. Jackson to join his staff, which was preparing for the prosecution of Nazi war criminals at Nuremberg. Although he termed it only a "cameo appearance," Justice Kaplan was the chief architect of the Nuremberg indictment, which charged Nazi officials with executing "a common plan or conspiracy to commit . . . Crimes against Peace, War Crimes, and Crimes against Humanity." Justice Kaplan later acknowledged the difficulty of the work, calling it "precarious and chancy" because it required the synthesis of three separate legal traditions, and proof of "themes that had never before been litigated." In recognition of this "chancy" work, the Army awarded him the Bronze Star.
After the war, Justice Kaplan began a long and illustrious teaching career at Harvard Law School, where he became the Royall Professor of Law. He was uniformly described as a brilliant teacher: a gentlemanly master of the Socratic method who -- by some magic -- infused his student’s words "with insight even with wisdom, by adding mere words -- but what words." In 1953, he published a civil procedure casebook with his Harvard colleague, Richard H. Field. That casebook was, for years, simply cited as "Field & Kaplan" and is still considered a classic work. Justice Kaplan’s 1966 James S. Carpenter Lectures at Columbia University became the book An Unhurried View of Copyright. That book, anticipating technology that would not exist for decades, envisioned the free speech implications of intellectual property law "at the eventual heart of things to come," when "linked or integrated systems or networks of computers [are] capable of storing faithful simulacra of the entire treasure of the accumulated knowledge and artistic production of past ages, and of taking into the store new intelligence of all sorts as produced."
Governor Francis W. Sargent appointed him to this Court. At his swearing-in ceremony, he famously paid tribute to his great friend and colleague, Justice R. Ammi Cutter, saying that he hoped "to follow in his footnotes." His own skill as a writer was legendary. He believed that crafting a brief or legal opinion was an exercise in storytelling and that facts were "everything." He commented to at least one former law clerk that, "if after reading the fact section, it is not clear exactly how the case must come out, then the author has not done his job." In his published opinions, Justice Kaplan was rarely content merely to resolve the limited case in front of him, preferring to use the case as a teachable moment. As he put it, "each case should leave the reader with a better understanding of the law."
Justice Kaplan was an incisive examiner from the bench, but never a showy one. He once advised a former law clerk, "Never ask a question from the bench merely to show how smart you are; ask only those questions that are likely to lead to an answer that will help you resolve the case."
But more than intellect and a desire to teach shone through his writing, which was regularly peppered with humor. While serving as a recall judge on the Appeals Court, he commented on this Court’s practice of transferring cases from the Appeals Court sua sponte, recommending that the Court would "do well not to seize everything with some life to it . . . : the Supreme Court must, or at least should, have regard to the psychological and intellectual health of Appeals Court judges, if nothing else." Regularly described as intellectually "restless," Justice Kaplan believed that the relative "liveliness" of a case was "not so much intrinsic to it[,] as a question of what intelligence and reflection can bring to it." Indeed, he thought that "[a] transforming imagination may make of a case, at first glance just drab ditchwater, an occasion to construct an edifice with ingenuity and novelty." In almost three decades on the bench, Justice Kaplan gave a master class on the scope and reach of such a "transforming imagination."
On behalf of the Commonwealth, I respectfully move that this Memorial be spread on the records of the Supreme Judicial Court.
Eric D. Green, Esquire, addressed the court as follows:
May it please the Court, I would like to offer these memories of Justice Benjamin Kaplan on behalf of we few, we happy few -- Justice Kaplan’s law clerks -- who were specially privileged to be blessed with a one year private tutorial by the greatest -- if also the most demanding -- law teacher of our education. I believe that I can safely represent on behalf of all of Justice Kaplan’s law clerks that while none of us felt qualified for the selection, each of us emerged from the experience with the knowledge that what he imparted to us in terms of standards of analytical rigor, understanding of the path of the law, and precision in explication we would carry with us and benefit from for the rest of our lives; and, by the model he personified, that we had a duty to pass these standards of excellence on to those who followed.
I was off punting at the other Cambridge on a Knox Fellowship from Mother Harvard, trying to figure out how I could postpone my entry into what seemed like the dour world of law firm practice, when word came through that Professor Kaplan had been appointed to the Supreme Judicial Court and was in need of a law clerk for his first full year on the bench. Somehow I had missed officially taking a course from Professor Kaplan at law school, but by my third year I had heard enough to know that I just had to have the Kaplan experience. Arrogantly, I sneaked into his Advanced Civil Procedure course on a surreptitious and unauthorized audit incursion. I was dazzled -- by the method, the insights, the precision and focus of the legal deconstruction, the erudition, and, in the end, simply the man at the podium. Though Professor Kaplan could be ruthless in analysis, a student making a good point made his eyes sparkle: "Rave on! Rave on, Lad!" he would exhort. So when the clerkship opportunity actually presented itself, I jumped at it, not understanding really what I was getting myself into.
From the first, my wife and I were swept into that special Cambridge (Massachusetts) cocoon stretching from Oxford Street to Mt. Auburn Street that seemed to revolve around the Kaplan house on Bond Street. Justice Kaplan and his wife, the amazing Felicia Lamport, made sure to take such good care of us, from finding us lovely accommodations in the back of a physician’s house on Hubbard Park on the Brattle Riviera with both a swimming pool and a tennis court (!), to making sure we were properly inducted into that wonderful bubble of intellectual and cultural life. This extraordinary generosity and kindness from Justice Kaplan and Felicia, a constant presence, was a special gift that all of his clerks treasured, and went a long way to balancing out the other part, which all of his clerks also treasured, but in a very different way.
The other part: I was warned in advance, and upon starting work it soon became clear, that I had gotten myself into a job that was impossibly beyond my abilities. I had worked with -- and competed against -- people with exceptional minds and intellectual skills (after all, Harv. L. Rev.), but this clerkship was something totally different. The Judge just inhabited a different world when it came to knowing, understanding, analyzing, synthesizing, explaining, questioning, and writing about the law. Every memo I wrote, every oral report I made, almost instantly disintegrated in the face of a few minutes of questions from the boss. What could I contribute, what could I add, when he was always already light years ahead of me on the issue, if I even discerned the real issue at all? Feeling totally inadequate, I decided, "Ok, I’ll outwork him." Wrong!!! I had thirty years on him, required only three or four hours of sleep a night, and had never been outworked by anybody when I set my mind to it. But Justice Kaplan’s idea of a "relaxing weekend" was to go off to Martha’s Vineyard and write three opinions. I would get back into the office on Monday hoping to have gotten ahead of him on something, only to find that he had dashed further ahead of me over the weekend and I was more behind than ever. His diligence and dedication to his duty reached almost to obsessive levels. Even when way ahead, he was afraid of being behind. I remember him once crying out, "Man, don’t you realize we’ve got two opinions to finish before the next sitting!" Silently, bewildered, I compared our "backlog" to that of the chambers of my fellow clerks, and could comprehend his anxiety only by reminding myself how painstakingly he revised, polished, rethought, and reworked every phrase of his opinions. Even when he couldn't go off to the Vineyard to work through the weekend on opinions because he was on single justice duty, he wouldn't relax. He told me, "I have to be on call in case a Jehovah’s Witness child needs a blood transfusion."
I couldn’t get close to keeping up with him on any level. This would have been utterly and completely demoralizing, especially to someone accustomed to intellectual achievement and recognition, except that Justice Kaplan never let it be that way. He never relaxed his standards; he never let up on his criticism of the work product; but he also never (or almost never; sometimes his frustration with getting to the nub of the problem momentarily erupted -- he wasn’t actually a saint) shed his kindness, his concern and care for his clerks as young adults needing to be supported even while being pushed to think deeper, be clearer, work better and harder.
As a Kaplan clerk, I soon realized that, unlike some of my fellow clerks, I would never ever see a word that I wrote in an opinion, except perhaps by coincidence. That hope of pride died almost at once, but at the same time, I realized, "Why should I?" Whatever small bit I could contribute to the work of the office Justice Kaplan would take in for what it was worth along with what seemed to me to be the entire collection of worthwhile human thought on the subject -- from cases, scholars, the physical and behavioral sciences, literature, art, theatre, and his rich and varied personal life experiences -- and then put out opinions that were immediately recognizable as uniquely Kaplan.
What most distinguished them as Kaplan opinions? The perfect, sometimes startling, sometimes invisible, structure? He cared fanatically about structure. "Try writing it in the other direction," he would say. Did he get that from Felicia, the poet? The language, the range and choice of words? Justice Kaplan’s ability to find exactly the correct word to express the thought precisely (even if it means constant resort to the OED for the rest of us) is often admiringly remarked. But what I take away from his language is not so much the bull's-eye accuracy of the word in the perfection of the thought, but the playfulness and delight in the manner of expression itself. Without showiness or pretense, a Kaplan opinion sings. As C.K. Williams says in On Whitman1,
"It’s essential to keep in mind that in poetry the music comes first, before everything else, everything else: until the poem has found its music, it’s merely verbal matter, information. Thought, meaning, vision, the very words, come after the music has been established, and in the most mysterious way they’re already contained in it. Without the music, there’s nothing; thought, merely, ideation; . . . not imagination, just fancy; intention, hope, longing, but not poetry. . . ."
Justice Kaplan would never have regarded his work as poetry nor compared his opinions to the splendor of Milton or Dante or any poet -- he was honestly modest and self-deprecating almost to a fault. But regular readers of Massachusetts Reports and devotees of the output of the SJC could hear his music and feel the muted verse in the background of opinions adjudicating even the most prosaic cases. Felicia's influence here also, I wonder?
The structure, the language, the music, yes. But, most of all, what distinguishes a Kaplan opinion is the sheer power of the legal thought. I do not know how much he viewed himself as a writer, a poet, a husband or father. Others can no doubt cover that ground better than his clerks. But what his clerks and all in the law recognized is how much he saw himself as a judge and how forcefully he directed all his enormous energy and power into pushing the law to greater levels of perfection, relentlessly striving to decide cases wisely within principles of judicial responsibility, and explaining his thinking as clearly and eloquently as possible. To his clerks, it came down to judicial craftsmanship in the deepest meaning of that term. He devoted himself to the judicial craft and drove himself in service to its perfection, I guessed as he imbibed it from Brandeis, Cardozo, Holmes, Frankfurter, Jackson, Harlan, Cutter and other giants. Craftsmanship meant getting to the very bottom of the reason for things and to the very best answer to the legal question. Craftsmanship meant exhausting thoroughness of research. Craftsmanship meant thinking through every confounding and competing thought or direction in the path of the law up to the present case and to the direction that path should take in the future. Craftsmanship meant precision and power of expression in explaining the decision -- especially one that broke new ground2 -- in a way that propelled the ideas ineluctably without affectation. In response to one of my more mundane and pedestrian efforts, he practically shook me by the shoulders and chided, "Why are we here? We’re here to make a difference!" He treated every case as an opportunity and as an obligation to make a difference as a judge.
The most memorable example from my clerkship year of Justice Kaplan's ability to combine abstract high-minded principles of law with a practical understanding of fundamental human nature and psychology is his surprising dissent in Commonwealth v. Mahnke.3 Mahnke’s killing of his estranged girlfriend, capture, trial, and appeal sometime seem like a screenplay masquerading as a legal case. It is a tale of jealousy, violence, religious hatred, vigilantism, admirable yet misguided devotion to the case by the police, and finally, enthralling judicial wrestling by the Justices of this Court with constitutional angels and demons. What presented itself as an assignment for an opinion unanimously affirming the conviction -- after all, the defendant had led his captors to the victim's precise burial place by the railroad tracks next to the old Sears building -- turned into a forceful and compelling dissent. But it took three years of law clerks' repeated research and the Justice's tenacious questioning and agonizing over constitutional principles to complete the metamorphosis. Justice Kaplan's dissent in Mahnke solemnly rebuking both the lawlessness of the vigilantes and the conduct of the police as "brands of anarchic behavior" requiring reversal is a shining example of Justice Kaplan's abiding commitment to the reign of law, wherever it may lead.
At a reunion of his law clerks on his retirement from this Court, we band of brothers (and sisters) shared many stories of our exquisite and sometimes excruciating yearlong tutorials with Justice Kaplan. Common to each of us was a quantum leap in the standards we would set for ourselves in our work, our craft, our writing, our regard and care for others, especially for those who might come under our tutelage in the future as we had come under his. Such a precious gift. There were other lessons I remember. Humorously, he even taught me what a co-author was for. I was doing a memo for the Judge, researching some arcane point of procedure. He called me in to review a draft memo I had labored over, summarizing the law on point from every conceivable jurisdiction. "No, no," he said, as I trembled. "Massachusetts has a different rule. I think there’s a footnote in Field and Kaplan on it." "Great," I said to myself, "not only did I miss it but it’s in his own damn book!" I checked my old copy of Field and Kaplan (did any law student ever part with that book?); sure enough, there it was, a footnote explaining Massachusetts' arcane approach to this procedural nicety and, indeed, I had it wrong in my memo. But, it turned out that I didn’t. I went back to the cases cited in the Field and Kaplan footnote; I rechecked the cases cited in my memo, especially those from Massachusetts ("Duh," my children would say, "where did you say you clerked?"). A shocker: not only was the footnote wrong now; I concluded that it had never been right. What to do? Only one avenue of escape presented itself. I gathered up all the cases and laid them out on his worktable; I opened up Field and Kaplan to the footnoted page. On top of it all, I laid my new memo (which I had stayed up all night polishing) going through the cases discussed in my prior memo and the cases cited in the footnote in F&K. I waited, barely breathing, while he studied them all. Finally, looking down at his book and then up in the air as if calling up memories slightly faded with time, he said, "Ah yes; Field wrote that." I never forgot, but I did warn my own future co-authors, Nesson and Sanders.
Another indelible memory of Justice Kaplan, and a lifelong lesson to me, was the enormous respect he showed without fail to everyone with whom he came in contact. The smartest man I ever met never displayed a trace of superiority or arrogance. He spoke with enormous respect of his colleagues on the Court (especially the graciousness of the Chief Justice who welcomed him warmly to the Court) and all the judges on the other courts of the Commonwealth, many of who came to the bench from very different backgrounds. He treated with the same respect and dignity the staff of the Court, from the clerks to the bailiffs and building maintenance personnel, including those who perhaps made their way through a more political route to the "New" Courthouse on Pemberton Square. His admiration for and gratitude to the other woman in his life, Sally Goolkasian, his longtime assistant at Harvard and on the Court, was evident to all his clerks, who shared his devotion and loyalty to her.
For me, and I believe all his clerks, he was mentor, teacher, role-model, writing instructor par excellence, task master, Magister Ludi of the Law, wise counselor, father figure, and, even though I have it on reliable information that he reduced all his clerks to tears at least once during their tenure, above all, an inspiration to strive to achieve the highest standards in one’s work and life. We will never forget him.
Retired Appeals Court Justice Rudolph Kass addressed the court as follows:
When Harvard University conferred an honorary Doctor of Laws on Benjamin Kaplan in 1981, the citation read: "Inspiring teacher, exacting scholar, ever inquiring jurist; his opinions have dignified our state's high court and enlarged the meaning of civil liberty." Not bad for a summation but let us, as Ben Kaplan was wont to say, descend to the details.
He grew up in the Bronx. The circumstances were modest. Ben's father doubled as a candy store proprietor and textile cutter. The family was bookish. Dinner table conversation, Ben reported, was marked by indirection. If you wanted salt, you didn't say, "Please pass the salt," but rather, "You don't suppose anybody has salt around here?" The family did not own a car and Judge Kaplan never learned to drive one although, as he explained, "I understand the theory of the thing."
Possessed of high quality intellectual horsepower, Kaplan was able to enroll at the City College of New York at age 14 and, at age 19, largely because his best friend was doing so, entered Columbia Law School in 1930. "The place," Kaplan recalled in his Holmes Lecture of November, 1981, "was in ferment as a vanguard of a movement that came to be called 'legal realism'. . . . Realism claimed inspiration and derivation from Holmes, and Holmes' essay The Path of the Law was required reading for the oncoming students."
Although Kaplan would have disclaimed categorization as a legal realist -- his questioning mind steered him away from wholesale commitment to a single approach -- legal realism remained a powerful influence in his teaching and judging. His academic writing and certainly his work as a judge display insistence on mastering the facts and how things work. If you really understood the facts, then you had the key to the right decision.
After law school, Kaplan found work with the New York firm of Greenbaum, Wolff and Ernst. While with that firm, Kaplan had his first brush with history. Morris Ernst, a celebrated oralist, was to argue before a panel of the Second Circuit that James Joyce's Ulysses was not obscene. He chose the bright youngster in the office to second him in case a question of law should come up. Argument proceeded for a full court day, Ernst conducting his largely by reading from the novel and letting that speak for itself. When the first court day ended, Ernst had not finished and the court wished to hear more. It must have been entertaining and, assuming that Ernst was reading in sequence, Molly Bloom was still to come. Before recessing, Learned Hand, J. put a question of law. Ernst turned to his junior and commanded, "Kaplan, go to the library of the Association of the Bar of the City of New York, take a stenographer with you and have a memorandum for the court tomorrow morning." Kaplan and the stenographer labored through the night through more than one draft. By morning Kaplan had, carefully proofread and in the requisite number of copies, a memorandum dealing with Hand's point. As soon as court filed in that morning and the panel had taken their seats, Hand said, "That question I put at the close of yesterday's sitting, I'm no longer interested."
Kaplan had more than this one encounter with L. Hand, J. He observed the great man on several occasions hurl a brief that displeased him at its author. This may have been beyond what Justice Frankfurter once referred to as "[t]hat evanescent display of impatience that may be allowed even a judge."
We shall hear about L. Hand, J. one more time in this memorial.
War came. Kaplan joined the army and came under the command of then Major R. Ammi Cutter (Cutter concluded the war as a bird colonel) whom Kaplan described as "obviously of Boston." The Cutter branch of the office of General Counsel of the Department of the Army dealt largely with procurement matters, including the establishment of army bases. Cutter had a disposition to mold the careers of those he thought well of. To Kaplan he said at war's end, "You should be teaching law." Cutter took up the matter with Erwin Griswold, the Dean of Harvard Law School, and James B. Conant, the president of the University and a mountain climbing companion of Cutter. So it was arranged that Kaplan would be asked to be a visiting professor. Kaplan claimed, "I had not been consulted."
Before he embarked on his academic career, Kaplan again, Zelig like, turned up where history was being made. Cutter had been ordered to draw up a protocol for a war crimes tribunal that would try the Nazi leaders, as well as certain German generals. Cutter detailed the now Lieutenant Colonel Kaplan to the staff of Justice Robert H. Jackson to prepare for what became the Nuremberg Trials. Kaplan always insisted that he played only a peripheral role, but the New York Times described him as a central figure in drawing the indictments.
Kaplan came to Harvard Law School in 1947 as a visiting professor and left 25 years later as Royall Professor of Law, widely regarded as the finest teacher in a golden age of teaching at the school. His nominal subjects, as he settled into his career, were civil procedure and copyright, but his true subject was a projection of himself: exact in language and thought, subtle and witty in his presentation; his students were awed, delighted, enriched and eternally grateful. Ben told one former student that preparing for every class was an unnerving ordeal; but in the classroom, Humphrey Bogart could not have been cooler or more seemingly at ease. As a scholar, his writings were in the then dominant tradition: modest in number but perfect in execution. Like two great contemporaries, Henry Hart and Herbert Wechsler, two of his most valuable contributions were co authored casebooks that enlarged their subjects -- in Ben's case a seminal casebook on copyright co authored with Ralph Brown of Yale and one on civil procedure with his colleague, Richard Field. His most lasting work, wrought out of lectures given at Columbia, was a small text -- An Unhurried View of Copyright: the perfect subject for a man with a sublime writing style later to grace his judicial opinions.
Ammi Cutter continued to be an influence. In 1972, he had resigned as a Justice of the Supreme Judicial Court in anticipation of an amendment to the Massachusetts Constitution that would require the retirement of judges at age 70. It is unlikely that the selection by Governor Sargent of Kaplan to succeed Cutter was coincidence; it would have been characteristic of Cutter to have had a word with the Governor. When Ben was sworn in, he acknowledged the succession and expressed the hope that he would be able to follow in Cutter's footnotes. That was an inside pun. Cutter was fabled for lacing his opinions with copious footnotes that were mini restatements of the law.
Following his retirement at seventy from the Supreme Judicial Court, Kaplan went back to teaching now and then and to service for almost twenty more years as a recall Justice on the Massachusetts Appeals Court. In his early nineties, he wrote a small masterpiece of a decision, Heng Or v. Edwards, 62 Mass. App. Ct. 475 (2004), centering on causation that in quality and expression could be set aside Cardozo's decision in MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916), as a judicial classic.
Few people measured up for Ben Kaplan because he never measured up to himself. His mind was too fine to miss the latent contradiction in any proposition or solution. Thus, he was a brilliant critic of those he admired, such as O.W. Holmes or Chief Justice Lemuel Shaw, of whom Ben said, "He often chewed over more than he bit." His demanding analysis and doubt produced an appreciation of the difficulties that confront trial judges. Here is his gracious conclusion to the opinion of the court in Commonwealth v. Edelin, 371 Mass. 497, 524 (1976):
"Legal relationships during that interval [shortly after the decision in Roe v. Wade, 410 U.S. 113 (1973)] were hard to define with certainty. Understandably, the doubts infected the theory on which the Commonwealth went. The judge tried the case with skill and careful attention to detail, but faced unprecedented problems which he had to resolve on the spot.
"In the comparative calm of appellate review, the essential proposition emerges that the defendant on this record had no evil frame of mind, was actuated by no criminal purpose, and committed no wanton or reckless acts in carrying out the medical procedures on October 3, 1973. A larger teaching of this case may be that, whereas a physician is accountable to the criminal law even when performing professional tasks, any assessment of his responsibility should pay due regard to the unavoidable difficulties and dubieties of many professional judgments."
His critical intelligence could also bear on how a crime was executed. Commonwealth v. Robinson, 34 Mass. App. Ct. 610 (1993), involved the arson of a classic Jaguar automobile which had been the site of sexual encounters between the defendant's wife and a man with whom the defendant had shared scoutmaster duties. Kaplan wrote:
"That it was the defendant who set the fire was shown through a confluence of facts. He improved on his earlier suspicions about his wife by tapping the telephone line and following his wife to her tryst with Norris. Knowing to a near certainty that there had been an affair, he was prey to feelings of outrage, resentment, and shame. He insisted that Norris confess and confirm the fact; the confession -- self-imposed torture to hear it -- would be clearest ground to justify acts of retaliation . . . . At what particular point the defendant's festering imagination overcame his conventional resistance to committing a crime, no one can say. He planned the criminal enterprise with some, but in the end not enough, care."
Commonwealth v. Robinson, supra at 615-616.
Robbins v. Robbins, 19 Mass. App. Ct. 538 (1985), illustrates Judge Kaplan's gift for wrapping up a principle in a single sentence. The case posed a challenge to legal fees to be paid by a third party, i.e. someone who was not the lawyer's client. Adopting a conservative approach in such cases, Kaplan wrote:
"When fee awards appear excessive and the public hears what has been called the soft thud of mutual backpatting, respect for the administration of justice must suffer."
Robbins v. Robbins, supra at 544.
Retirement from judging was a burden, only partly lessened by visits from his former colleagues at Harvard and on the bench and a universe of friends and former students who loved him.
The definitive verdict on Ben Kaplan was, by chance, delivered over a half century before his death but could serve for an epitaph. As a young lawyer in New York, Ben had argued a case before the Second Circuit with Learned Hand on the panel. As the arguments concluded in the case, Hand turned to his colleagues and said of Ben in a voice that -- characteristically -- carried through the courtroom, "I think the young fella has it right."
Retired Supreme Judicial Court Chief Justice Margaret H. Marshall, speaking for the court, responded as follows:
Chief Justice Ireland and members of the Court, Attorney General Coakley, Justice Kass, Mr. Green, members of the bar, the family of Justice Kaplan and guests:
On September 20, 1972, Benjamin Kaplan became an Associate Justice of the Supreme Judicial Court,4 serving in that capacity until he reached the mandatory age of retirement in 1983. We gather today to remember his outstanding contributions to this Court, and his many other contributions to this Commonwealth and to our nation. Justice Kaplan’s seventy-year plus career took him from private practice, to working with the chief prosecutor at the Nuremberg war crime trials, to teaching at Harvard Law School, and then to the Supreme Judicial Court.
Justice Kaplan first sat on the Court in Boston on October 2, 1972.5 His first signed opinion was released one month later.6 The case concerned a challenge to the in-court identification of the defendant by the victim. In a brisk three and one-half pages, Justice Kaplan disposed of the question:
"While in bed in her first floor apartment at 40 Grand Street, Worcester, about 11:45 P.M. on August 28, 1969, Mrs. Bates-Gee observed the figure of a man entering the room and lifting her purse from a doorknob. Putting on her duster, she pursued the intruder and grabbed his shoulder but then lost her hold as he made his escape through a pantry window. At this point she had a good look at him by the night light in the pantry."7
With the facts as summarized, can there be any doubt of the outcome? She "had a good look at him by the night light in the pantry." Short. Crisp. Straight to the point. The facts leading inexorably to the legal conclusion. Speaking about his friend and mentor Justice Ammi Cutter, Justice Kaplan once noted that Justice Cutter "took seriously the maxim ex facto jus oritur, the law springs or ought to spring from the facts."8 It is easy to see Cutter’s influence on Kaplan, just as I have always discerned in Justice Kaplan’s writings the influence of Justice Robert Jackson, a great judicial writer, for whom lawyer Kaplan worked at Nuremberg. 9
Upon his retirement from this Court, Justice Kaplan was recalled to serve on the Appeals Court, remaining as a recall Justice until his death on August 18, 2010 at the age of 99.10 During his tenure as a justice he wrote 526 majority opinions of the appellate courts of Massachusetts: 246 majority opinions of the Supreme Judicial Court, and 280 majority opinions of the Appeals Court, the last when he was 94 years old. In addition there are some 35 dissenting opinions and 26 concurring opinions.
To my eye, to my ear, each opinion is beautifully written. There is a reason for that. To Justice Kaplan the point was not only to "find the one right solution" to a legal question, but "to explain it in a way that satisfies not only the Bar and the specialists but also the general intelligent public,"11 in short, to teach as he wrote. Style is one aspect, an important one, of judicial opinions. But in the long haul it is the substance that counts. And one can always count on the substance of a Kaplan opinion. That is why when, as a Justice, I opened a volume of an appellate report to which counsel had made reference, and saw that the cited opinion had been written by Kaplan, J., I always stopped to read the whole opinion. It was not only for the pleasure of doing so, but because in large ways and small, through his opinions Justice Kaplan continued to teach, and will always teach, generation upon generation of lawyers and judges.
I did not have the privilege of serving with Justice Kaplan. But what was it like to sit with him? Before walking onto the bench it was not unusual for him to remark that he wished he had had more time to prepare for the upcoming arguments. His colleagues remember this because he always was so well prepared. On the bench his questions were sparse, but a Kaplan question to counsel crystallized the issue. The Justices and counsel had been going back and forth in a difficult case, a colleague remembered, when Justice Kaplan asked a question. "It was if he had driven a truck through the morass, clearing a path for all to see," the colleague recalled. "I always made a note of a Kaplan question," another told me, "because if I was assigned to write the opinion, I knew that was the place to start." Justice Kaplan listened rather than talked. He was impressive, brilliant, accomplished, and always unfailingly respectful of his colleagues.
His ability to educate was evident to his fellow Justices, his law clerks, and the court's staff. The Reporter of Decisions to the Supreme Judicial Court and Appeals Court, C. Clifford Allen, relates that every visit to Justice Kaplan's office to discuss one of the Justice's draft opinions culminated in a deeper understanding of the legal issue at hand, or in consulting The Oxford English Dictionary to confirm as always that Justice Kaplan's use of an unrecognized word was right on the mark.
When Justice Kaplan retired from the Supreme Judicial Court, then Chief Justice Edward Hennessey invited some of Ben's friends to the Chief's chambers. He told them that because Ben was considered by his colleagues to be the most erudite member of the Court, none had questioned Ben's use of a word -- unfamiliar to all -- in a draft opinion. At the Justices' next monthly "Consultation" Ben prefaced the discussion by apologizing for the typographical error in his draft.
Ben loved being on the Appeals Court, where he is best remembered by the younger generations at the bar. He loved the work, he loved his colleagues, and he loved his discussions with them. For many years the justices of that Court would take lunch together in the cafeteria in the basement of One Beacon Street, across the plaza from the Courthouse. Ben was there most days, telling stories, commenting on the news, or sports or philosophy, listening as well as talking. Ben was no name-dropper, but the famous and the infamous would find their way into his stories. As did his droll humor. When the long-serving administrative assistant to the Chief Justice announced her retirement Ben remarked: "I know a catastrophe when I see it."
What was Ben’s droll humor to some struck fear in the hearts of others. The Justice was unfailingly polite to his colleagues and to members of the bar, his questions at oral argument always even in tone and respectful. But he was "hell on wheels" with his law clerks, who were on call 24/7. "Tell me again why you decided to go to law school," he would say to a law clerk, or "Have you considered another line of work." Does any one of them regret the experience? I doubt it. "I grew more, I was educated more in that year than I ever had been" is a common response from Kaplan law clerks. It was a "life-defining" experience for them.12
Driving Ben. I have said that Ben loved serving on the Appeals Court. His colleagues, in turn, loved him, deeply. Until late in his eighties Ben would walk to Harvard Square every day and take the T to work. That was until his colleague, Justice "Nan" Duffly intervened. Thereafter, until he was well into his nineties, three or four times a week one of his judicial colleagues would arrive at Ben's home on Bond Street to drive him to court. He had always read the morning's newspaper cover to cover before they set off, Ben eager to engage his colleague in interesting conversation. Hearing the news from Ben Kaplan during those car rides was "like driving history," remarked one of his colleagues. Ben "was there at the making of so much history, and that became a part of our daily discussions." Speaking in 1994 at the Memorial Sitting for Justice Ammi Cutter, who guided so much of Ben’s life and career, Ben commented on Ammi’s years on the Appeals Court. Justice Cutter, said Ben, "took nourishment from his debates and worries and work with younger colleagues; in this way he was sustained in good spirits for a decade until his final retirement in 1990 at the age of eighty-eight." I have no doubt that the Justices of the Appeals Court nourished Ben in the same way until his death at the age of 99.
Ben’s brilliance as a law teacher has been recorded. He was brilliant. But he was at the same time elusive, provocative, and demanding. One learned that on the first day of his course on civil procedure. In 1934 Congress authorized the Supreme Court to promulgate new rules of civil procedure in Federal courts.13 Some years later a Mrs. Sibbach, driving her car in Indiana, had a collision with a truck owned by Wilson and Company, the meat packers. She was injured and sued.14 The new rules required her to undergo a medical examination. She refused. Congress had authorized rules only of procedure; her lawyers argued that the medical examination requirement was substantive, outside the rule-making power of the Court. Five members of the Court concluded that the medical examination requirement was within the rule-making authority.15 Four dissented in an opinion by Justice Frankfurter that called the examination a "drastic change in public policy."16 This was the topic of the first civil procedure class for first-year students. What fun Professor Kaplan had chasing the tail of that dilemma with each new generation of law students. How confused, and then bedazzled they were, just entering the path of the law. "I've had good teachers in different schools," Justice Ruth Bader Ginsburg later recalled, "but to this day I can remember that first-year procedure class."17
Ben did not talk often about his family, about his generous and effervescent wife, Felicia Lamport, a fine poet and satirist, or his children, Nancy and Jim. But he loved to talk about his grandsons. He took a great interest in them and in their lives. He was concerned about their career and other choices, sharing his palpable love for them with his colleagues. Perhaps, like so many men, Ben discovered in his grandsons the joy of unfiltered time with a new generation.
I have spoken throughout my remarks of "Ben." I first met Professor Kaplan in 1969 and for the following forty years knew him as a friend and much later as a judicial colleague. But I could never bring myself to address him as "Ben." When I first met him, I had arrived only recently from South Africa, where we did not address our respected elders by their first name. Later, I was too much in awe of him to use that colloquial term. Over the decades, each time I addressed him as "Justice Kaplan," he would respond "Ben." He was always warm and welcoming to me, but because of my profound respect for the life he lived, and the contributions he made through the law to making ours a better world, to me he always was and always will be Justice Kaplan. Reflecting on the Nuremberg trials in 1995 on their fiftieth anniversary, Justice Kaplan was frank in his assessment of his own role in an enterprise he termed "precarious and chancy."18 "I had only a cameo appearance," said this great man who had crafted the indictments that are the foundation of modern concepts of accountability for crimes against humanity. "The lesson [of Nuremberg] for me", he continued, is this: "vision conquers all." Justice Kaplan remarked that he had learned that lesson from Robert H. Jackson at Nuremberg. Ben Kaplan lived that vision for the remainder of his life.
On behalf of the Justices of the Supreme Judicial Court, the motion of the Attorney General is allowed, and this Memorial is to be spread upon the records of the Court.
1C.K. Williams, On Whitman 3-4 (Princeton 2010).
2See, e.g., Goldstein v. Gontarz, 364 Mass. 800, 814 (1974) (inviting consideration of explicit treatment at trial of insurance, or the lack of it, by the trial judge).
3Commonwealth v. Mahnke, 368 Mass. 662 (1975).
4362 Mass. iii (1972).
6Commonwealth v. Denault, 362 Mass. 564 (1972).
7Id. at 564-565.
8Memorial, Richard Ammi Cutter, 418 Mass. 1603, 1615 (1994).
9See Morisette v. United States, 342 U.S. 246 (1952), as an example of the recitation of facts making clear the outcome.
10See www.law.harvard.edu/news/2010/08/19_kaplan.html, last reviewed June 6, 2011.
12Memorial, Francis S. Quirico, 433 Mass. 1303, 1312 (2000).
13See 28 U.S.C. § 2072 (originally enacted as Act of June 19, 1934, c. 651, §§ 1, 2, Pub. L. No. 73-651, 48 Stat. 1064).
14Sibbach v. Wilson & Co., 312 U.S. 1 (1941).
15Id. at 16.
16Id. at 18.
17Bryan Marquard, Obituary of Benjamin Kaplan, The Boston Globe, August 20, 2010.
18See http://youtube.com/watch?v=q-sqQ_p2piE., last reviewed June 6, 2011.