Boyce F. Martin Jr.

Martin wrote forcefully about what he perceived to be the many failures in the American system of capital punishment. In one case involving a debate regarding a jury's decision to sentence a defendant to death while a co-conspirator was not sentenced to death, Martin dissented from the majority that held that the principle of proportionality did not apply. He wrote,

Jason Getsy and John Santine are not hypothetical players in a criminal law final exam. They are real people who committed real crimes, indeed, the same crimes. That Getsy will be put to death while Santine will be spared, and that the law (at least according to the majority) actually sanctions this result, makes it virtually impossible for me to answer in the affirmative what Justice Blackmun viewed as the fundamental question in Callins v. Collins. -namely, does our system of capital punishment "accurately and consistently determine" which defendants "deserve" to die and which do not? Getsy v. Mitchell. "This state of affairs I find unconscionable, even as I remain bound to apply the laws of this court and of the Supreme Court." Id.

In a much-noted dissent in Moore v. Parker,[11] Martin forcefully objected to the current administration of the death penalty:

I have been a judge on this Court for more than twenty-five years. In that time I have seen many death penalty cases and I have applied the law as instructed by the Supreme Court and I will continue to do so for as long as I remain on this Court. This my oath requires. After all these years, however, only one conclusion is possible: the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.

After discussing many of the studies and cases that have noted the numerous flaws in our system, he concluded,

As noted above, while the system suffers from many flaws, much of the arbitrary imposition of the death penalty stems from the exceedingly distressing fact that during all my years on the bench, the quality of lawyering that capital defendants receive has not substantially improved. In many cases it has deteriorated. In fact, one of the most clear examples of the arbitrariness of the death penalty is the common knowledge that those defendants with decent lawyers rarely get sentenced to death. Death has more to do with extra-judicial factors like race and socio-economic status than with whether death is deserved. A system, whose basic justification is the interest in retribution and general deterrence, is not served when guided by such irrelevant factors. Nor should a system of life and death hinge on the proficiency of counsel. I have no delusions of grandeur and I know my place in the judiciary. My oath requires me to apply the law as interpreted by the Supreme Court of the United States. I will continue to do as I am told until the Supreme Court concludes that the death penalty cannot be administered in a constitutional manner or our legislatures abolish the penalty. But lest there be any doubt, the idea that the death penalty is fairly and rationally imposed in this country is a farce.

Martin authored the affirmative action case Grutter v. Bollinger,[12] which held that the University of Michigan Law School could take into account an applicant's race in making admission decisions. Grutter and its sister case Gratz v. Bollinger, which challenged the University of Michigan's undergraduate affirmative action plan, eventually were appealed to the United States Supreme Court. The Supreme Court affirmed Grutter and the Law School's affirmative action plan, while reversing Gratz and finding the undergraduate plan unconstitutional.

The Grutter case was surrounded in controversy. Conservative judges on the Sixth Circuit claimed that then-Chief Judge Martin had improperly steered the case to a more liberal panel. They also claimed that the en banc review of the case was tainted because it was delayed until two conservative judges of the Sixth Circuit had retired, giving the court a liberal majority. Judge Danny Julian Boggs took the unprecedented step of filing a "Procedural Appendix" as part of his dissent from Grutter, in which he explicitly accused Martin and the rest of the majority of improperly tampering with the case. The majority took umbrage with Judge Boggs' decision to publish this appendix, with Judge Karen Nelson Moore noting that Boggs had not raised any complaint with the composition of the en banc court when the en banc petition was circulated or when the case was argued before the en banc court, suggesting that Boggs's dispute was with the outcome of the case, rather than the procedures of the court. However, such a complaint could have been characterized as an ex ante attempt to influence the outcome of the case by manipulating the composition of the en banc panel, the very problem Boggs alleged. The Judicial Watch foundation filed a formal complaint with the court alleging administrative improprieties, and subsequently wrote a complaining letter to Rep. Sensenbrenner of the House Judiciary Committee requesting an impeachment investigation.[13]

The handling of the complaint itself was reviewed by the Judicial Conduct and Disability Act Study Committee (the "Breyer Committee"), which reviewed how complaints were being handled under the Judicial Conduct and Disability Act of 1980. The Breyer Committee report observed that the internal investigation into Martin's alleged actions in handling the Grutter case was flawed by the acting chief judge's decision to make certain findings of fact as "undisputed" without asking Martin whether he disputed them (although the report agreed that certain of the findings, such as dates and the sequence of events, were truly undisputed). In this respect, the report found that the investigation was conducted in a manner inconsistent with the letter and spirit of the court's rules. At the same time, however, the report also took issue with the acting chief judge's decision to drop the complaint due to "corrective action". The committee considered this an insufficient remedy, since the Act requires that the corrective action be "voluntary action taken by the subject judge," and Martin "did not participate in taking the corrective action". [14] As Moore predicted in her concurrence, in the wake of Judge Boggs's "Procedural Appendix", relations between conservative and liberal members of the Sixth Circuit remain strained.[15]