Linda Stewart Dalianis, the first woman to hold a seat on the New Hampshire Supreme Court, is now  the Court’s senior associate justice. 

Conducted by Maggie Goodlander

During your time on the bench, what shifts have you seen in the New Hampshire Supreme Court? Do changes on the state level mirror the shifting nature of the United States Supreme Court and the American judicial system at large?

If I have seen any shift in the New Hampshire Supreme Court, it has been a shift towards a greater deference to the legislature. In other words, I think all of us on the Court right now are highly attune to legislative enactments. We look carefully at the language of statutes even if, in our view, the result seems skewed. We say, “You know, that’s what the legislature said, so that’s what they must have meant. If they meant something else they can change it.” I do not know, however, whether that mirrors any trend in the federal system. I don’t have a very clear sense of how the United States Supreme Court is or has been to Congress. I would guess it has been reasonably deferential, but again I have not paid close attention.

You are the first woman in history to be seated on the New Hampshire Supreme Court. Does gender play a significant role in the courtroom? If so, what have been the challenges and what has surprised you the most?

When I first became a judge twenty-seven years ago, gender was a big issue because it wasn’t clear to the community at large that a woman was capable of doing the job. So I worked very hard for long time to prove that women were capable of doing the job. When another woman was finally appointed to the trial court, I felt vindicated. That was many years ago. So when I was then appointed to the New Hampshire Supreme Court, gender was only an issue so far as it meant that for the first time there was a person of the a different gender on the Court. Individually and as a judge, I don’t think that gender plays a large role in the job that we do. I bring who I am to the table, and my colleagues who are men bring who they are to the table, and we talk about issues based upon our perspective and learning and view of the law. I honestly don’t think that in the job I now have gender matters that much. I think that a court of five women would be in principle the same as a court of five men.

Justice Ginsburg is currently the only woman seated on the U.S. Supreme Court. What does this indicate about the judiciary at large? What are your thoughts on the future of women in the judicial system?

Concerning gender, I think that like society at large, the legal system has taken a long time to come around to the idea that women are capable participants. This may be an idiosyncratic view, but I think that once there is a sort of critical mass of women in the judiciary, the pressure is off. In other words, the idea is that if there are some women judges, so we don’t have to think about that anymore; there are probably enough, so let’s not worry about it. That can mean, unfortunately, that over time women have a harder time catching up to their percentage in the general population. So I think that change will continue to be reasonably slow. On the other hand, we have a certain inexorability so that over time there will be more and more women and it will be less and less of a problem.

You spoke about what you bring to the table when you’re making a decision; could you say more about what factors typically lead you to your legal reasoning? Is it the text of the New Hampshire Constitution and other statues? Historical precedent? General jurisprudence? Or perhaps a combination of these and more?

That depends upon the problem. If I’m dealing with a clear question of constitutional interpretation, I start with the text and then look at the cases that have grown up around the text and see if I can find a good fit between the two. That’s not usually much of a problem. If it’s a question of statutory interpretation, I start with the language of the statute. If it’s plain for me, I don’t go any farther. In my view, if that’s what they wrote, that’s what they meant. If it’s ambiguous, I look into legislative history and similar statues elsewhere to figure out what the legislature meant in enacting a particular statue. If it’s a common law development, I look at where we’ve been, and I try to keep us more or less where we’ve been. I’m not particularly interested in extending common law for the most part, although there have been times where I’ve seen a hole that needed to be filled and the legislature had not yet filled it. In that case, I recommend to the Court that we move in that direction. So it depends upon the problem.

On a more personal note, which judges, either living or in history, on the state or federal level, do you look to and draw inspiration from as you continue in your career as a judge?

For a long time, my inspiration was Sandra Day O’Connor. I figured that if she could do it, I could do it. That really had nothing to do with our respective views of jurisprudence I honestly couldn’t spend much time telling you how she decided her cases or her reasons for doing so. But in the sense of looking for a personal role model, she was it. She was appointed to the U.S. Supreme Court just a few months after I was appointed to the New Hampshire Court, so I felt as if we kind of grew together.

Apart from that, I often think of Frank Tennyson, who was perhaps the most outstanding chief justice in New Hampshire’s twentieth century history. He was very pragmatic and careful conservative in the best sense of the word. He cherished the common law and was very astute in his observations about the ways in which it should be advanced.

In your twenty-seven years as a justice, you’ve decided on hundreds of cases. If you had to choose, which case would you say has been the most important or influential?

They’re all important at least to the people involved and sometimes to the community at large. One case that comes to mind as potentially having further consequence had to do with holding Internet sellers of private information responsible if they are careless about giving people’s private information away to third parties who may ultimately do them harm.

It’s sometimes argued that Roe v. Wade and other rights cases were decided before the nation was ready for such change. To what degree should societal readiness or a respect for social norms factor into the way a court makes decisions?

As a general proposition, I think that social norms are a factor. As a particular proposition, I can’t say much about this because we on the New Hampshire Court may very well have to deal with issues involving abortion rights and gay marriage. So, unfortunately, I can’t comment on my views on these matters.

You mentioned Justice O’Connor’s impact on your career path. What advice do you have for young women aspiring to devote themselves to the law?

I think many of the obstacles have been overcome. It’s no longer regarded as odd that women should be interested in law, and I think that law school enrollment is roughly fifty-fifty male-female. I think that for anybody, young women or young men, my advice would be to remain diligent, to persevere, and to do as well as you can at whatever academic choice you’ve made. Understand that to become a lawyer and, if ever, a judge is a long road, and much of what you will have to do along the way is difficult and not terribly interesting. You have to be extremely goal-oriented and keep your eye on the prize, so to speak.

I’m not sure if you’re able to comment on this question, but perhaps it will touch on the larger issue of balance of power within the government. Education funding has been a huge issue in New Hampshire politics and for the nation at large. To what extent is the Supreme Court responsible for issues or problems concerning education or other important and pressing social issues? With which branch does the responsibility lie?

The Court is responsible for interpreting the Constitution when a case comes to it. The Court doesn’t look for cases, and the Court doesn’t create the problems that ultimately require its solution. So the only answer I can give you to this particular question is that when we face a constitutional issue that someone brings to us, we deal with it as intellectually and honestly as we are able.

In U.S. legal and social history, the Warren Court is often dubbed an “activist” court because of the sweeping decisions it made. What are your views on judicial activism? To what extent is it an issue on the state and federal level?

I think that judicial activism is a cute phrase, but it’s generally invoked to incite people who disagree with a particular opinion. One person’s judicial activist is another person’s sensible and righteous judge. I don’t buy that label. I think there are times when judges have to fill in holes in the law, and that perhaps gives people an excuse to call them activist, but frankly I don’t think many of us deserve or earn that label.

What’s the best part of serving as a state Supreme Court justice?

The chance to think hard about important issues and make a contribution to my state.

You spoke about the balance of power among branches in the New Hampshire state government, but in an age where national security is at the forefront of our minds and the power of the executive is ever-growing, will this delicate balance be maintained?

In New Hampshire, I think there’s a very fine balance among the branches. I think we all recognize the responsibilities of the others, and we try very hard not to step on the toes of the others. When it’s necessary to work together across the divide we try to do that.

I don’t have an opinion about the issue on the federal level. It’s not for me to opine about such things.

What are the most pressing issues for your court at the moment? What’s in store for the future?

The biggest issue is having enough resources to do that work, which is a perennial issue, as is developing ways in which to challenge the people who choose to represent themselves without lawyers in greater and greater numbers. Those are practical issues and not jurisprudential, but I think they are the most important issues we’re facing at the moment.
 

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