Below is the full text of a masslawyersweekly article from 06/05/2025.
By Kris Olson
It became an annual January ritual. Two dozen or more former law clerks of Chief Justice Herbert P. Wilkins — many of whom have since made their mark on the Massachusetts legal profession in their own right — would gather to celebrate the birthday of the Supreme Judicial Court‘s longest-serving justice and catch up on not just what was going on in their professional lives but with their families as well.
News of Wilkins’ death on May 27 at age 95 prompted those clerks to reflect on the indelible imprint Wilkins had made on them and the law of Massachusetts, even without bombast or flourishes.
Retired Foley & Lardner partner Michael J. Tuteur, who clerked for Wilkins in 1984, calls it the justice’s “Yankee sensibility.”
“He was not somebody who reached for the limelight,” Tuteur says. “He was not flamboyant in any way, but he had quite a significant impact — on the law and his clerks.”
By those clerks’ estimation, Wilkins may be the last justice to have written all his own opinions, based on his clerks’ memos — if they could match his pace.
“I couldn’t keep up with him as a law clerk,” says retired U.S. Bankruptcy Court Judge Frank J. Bailey. “There were times when he would ask me to write a memo on a case he had been assigned, and two days later he’d walk by my desk and plop down a full opinion before I had a chance to give him the memo. He’d say, ‘Read that. See what you think.’”
It would be exciting if Wilkins incorporated a piece of their research memos into his opinions, says Land Court Judge Robert B. Foster.
That happened for Foster with the decision in the 1993 case Polaroid Corporation v. The Travelers Indemnity Company, et al., a suit with an “enormous number of complex coverage issues,” Foster recalls.
Wilkins brought the same care and thought to a far more public case, Commonwealth v. Twitchell, in which the court overturned the convictions of two parents who were members of the Christian Science church. They had been charged with involuntary manslaughter after their 2-year-old son died from a bowel obstruction related to a genetic condition that could have been treated with surgery instead of prayer.
Foster says he got his first inkling that clerking for Wilkins would be a special opportunity at his interview for the position. Foster’s oldest son had been born while he was in law school, though few people knew that he was a father. Yet the first question Wilkins asked him was, “How’s the baby?”
“He cared about his family, and he cared about our families,” Foster says.
Foster doubts he would have become a judge had he not clerked for Wilkins.
“Every day, I try to model myself after what he was as a jurist, which was to think deeply about cases and examine all the issues and make the right and fair decision; to write with clarity so that everyone could understand; and to just conduct myself with honor and integrity,” Foster says. “I owe all that to Judge Wilkins.”
Wilkins’ 27-plus years on the SJC surpassed the longevity record set by his father, Justice Raymond S. Wilkins, who served from 1944 to 1970, the last 14 of those years as chief justice.
His children, too, went into the “family business,” broadly defined as “public service,” says his son, retired Superior Court Judge Douglas H. Wilkins, noting that his three siblings are involved in education in one way or another.
His father loved puns, which helped infuse his children with a love of language, Douglas Wilkins says.
“Whatever he could do to help us be our best selves was, I think, his main goal in life,” he says.
Herbert Wilkins also wanted his colleagues on the SJC to be their best selves, says former Chief Justice Roderick L. Ireland, who joined the court after Wilkins had become chief.
“He helped me learn about the role of a justice at the SJC,” Ireland says. “He taught me how the process was supposed to go. He was very patient, kind, understanding and supportive, and he was a gentleman.”
Wilkins also had answers for every question and offered “wonderful suggestions” to improve his colleagues’ draft opinions, Ireland adds.
“Now, he never got credit for that, but that meant that he would have his fingerprints on almost every opinion that came out of the court,” he says.
Ireland also notes Wilkins’ ability to write succinctly and clearly.
“He could say whatever needed to be said in just a few pages,” he says. “He didn’t need to write an encyclopedia to give you the answer about what the law was.”
In a joint statement, the current justices of the SJC highlighted Wilkins’ “incisive rulings and meticulous attention to detail” along with his “respectful and polite demeanor on and off the bench.”
“The people of the Commonwealth are fortunate that a person of his intellect, dignity and commitment to justice was willing to devote his talents in their service,” the statement reads.
Bailey recalls a time that Wilkins was sitting as a single justice when a prisoner, representing himself, came into the courtroom in shackles.
“As soon as he went out on the bench, Justice Wilkins said, ‘I want this man unshackled while he’s here presenting in this courtroom,’” Bailey says. “The court officers were a little reluctant about that, but he insisted on it.”
Wilkins would later explain that he just wanted to level the playing field between the man and the prosecutor.
Concern for the accused was also one of the hallmarks of his jurisprudence. In the winter 1999 edition of the Massachusetts Law Review, Brownlow M. Speer, chief appellate counsel of the Committee for Public Counsel Services, wrote about how Wilkins served on the SJC as the U.S. Supreme Court was undergoing a profound shift.
“By the 1970s, the Warren Court revolution on criminal procedure had run its course, and the U.S. Supreme Court was engaged in the process of scaling back or eliminating entirely federal constitutional protections declared in the preceding decade,” Speer explained.
U.S. Supreme Court Justice William J. Brennan Jr. “issued a plea,” urging state courts to use state constitutions as vehicles to safeguard individual rights. Wilkins was among those who answered the call, writing or joining opinions that resisted the Supreme Court’s retreat on searches and seizures, and other matters.
As Wilkins would later explain in a 2000 Boston Bar Journal article titled “The State Constitution Matters,” Massachusetts has traditions of concern about governmental intrusion on its citizens’ rights, progressive social legislation, and assistance to the disadvantaged, including indigent criminal defendants.
“These traditions and a state constitution that expresses concepts of reasonableness and fairness that should be reapplied as society changes, have, from time to time, justified an independent and different conclusion on a constitutional issue by judges who are sworn to uphold not only the United States Constitution but also the Constitution of the Commonwealth,” Wilkins wrote.
Wilkins was not too far from the mandatory retirement age when Gov. William F. Weld tapped him to lead the court. But in a relatively brief time as chief justice, Wilkins was able to repair a relationship between the judiciary and the Legislature that had become “pretty fraught,” Tuteur notes.
Not a glad hander, Wilkins nonetheless got the relationship on a better trajectory.
“By the time of his retirement, the court system was in a much, much better place with the Legislature than it had been before that,” Tuteur says.
Wilkins also had a profound influence on how the practice of law in Massachusetts is regulated, chairing the SJC’s Rules Committee.
In a Massachusetts Law Review article titled “The Public Interest Comes First: The Legacy of Herbert P. Wilkins,” attorney and former bar counsel Arnold R. Rosenfeld noted that the protection of the public was at the forefront of Wilkins’ mind as he urged the court to modernize the ethical rules.
Wilkins was also a natural choice to serve as the first chair when the Access to Justice Commission was first established in 2005, says its current co-chair, Superior Court Judge Valerie Yarashus.
Few if any legal “giants” have stood taller, in Ireland’s estimation.
“I think his legacy is a wonderful legacy that very few people have come close to in the legal field,” Ireland says. “He was a real gem of a human being as well as a great jurist.”