The Jackson Free Press revealed in a breaking story online last week that some Mississippi Supreme Court justices had been deliberating how to change a state law that determines who gets to be the chief justice and presiding justices, essentially turning the positions into popularity contests among the justices. Nobody was particularly proud of this deliberation, which got shunted off to a judicial committee for more consideration. The court has refused information requests from the Jackson Free Press even proving the existence of the deliberation.
Some other states already use the popularity contest system, though Mississippi’s system has been based upon seniority for decades. The pro-election front claims the current system thrusts justices into positions of authority that they may have no desire—or ability—to handle. Under the revised system, long-standing justices, like Justice James Graves or Oliver Diaz, could be cheated out of their chance to occupy a presiding justice seat.
What will the court be saying to voters who routinely re-elect popular judges to return to the bench if it changes state law and potentially removes the chance for Graves and others to serve in a capacity for which they’ve waited years? The chief justice gets to set the mentality of the Court of Appeals by appointing the chief judge. He also manages the Supreme Court’s case load. How soon will women’s and minorities’ issues get proper focus on the docket and in appellate court if a majority white, male court keeps getting to pick the chief?
The potential divisions here go well beyond race and sex, moving deep into the realms of political and philosophical divisions.
Popularity is a dangerous way to pick a judge, considering how thoroughly the court falls under the influence of the U.S. Chamber of Commerce. The chamber has been piling incredible amounts of unmonitored money into state supreme court races in an attempt to buy a pro-business, anti-plaintiff court similar to the type owned by the business lobby in Texas and Alabama.
Currently, the justices pushing for the move to elect the chief justice just happen to vote in the majority on cases that have made the Mississippi Supreme Court a role model on how to insulate businesses from lawsuits. Their record on judicial decisions appears ridiculously sided against plaintiffs. And a new system would work well to preserve the court in the event of a current chief justice losing his position to a more popular, more politically balanced upstart in November.
While considering the matter of timing, keep in mind that nobody prompted this activist move by the court. Nobody lodged a legal assault upon the state law itself, calling it unconstitutional, and seeking its demise. A majority of the justices simply wanted to change it, apparently just in time for November.
They chose the wrong way to do it.
