The Clarion-Ledger reports today that the majority of justices on the Mississippi Supreme Court are contemplating overruling the current law that automatically designates as chief justice the senior judge on the court and replacing it with an internal rule that makes the chief justice selected by the nine sitting justices.

Since 1848, the Mississippi Legislature has determined how the chief justice is selected. The current statute, most recently amended in 1976, has the following wording:

The judge of the Supreme Court who has been for the longest time continuously a member of the court shall be chief justice; and, the two (2) judges of the supreme court who have served continuously for the next longest time shall be presiding justices. In case of the absence of the chief justice, the presiding justice who has been for the longest time continuously a member shall preside. In the event that two (2) or more judges of the Supreme Court shall have served as members of the Supreme Court for equal periods of time, then seniority shall be determined according to the length of time that such judges shall have been members of the Mississippi State Bar.¹

This is not the first time that the court has claimed the power to write its own rules.

The Mississippi Constitution of 1890, the one in effect today, states that “The judicial power of the state shall be vested in a Supreme Court and such other courts as are provided for in this constitution.” ² The court has, since the 1970s, interpreted the phrase “judicial power” to include the sole power to determine the rules and procedures of the judicial branch.³

Such an interpretation has the effect of shutting the legislature completely out of the judicial rulemaking business, even though there are numerous statutes, some going back 100 or more years, that do precisely that. On the federal level, the authority of Congress to approve the rules governing the procedures and operations of the courts has never been seriously questioned.

In 1981, the Supreme Court adopted, sua sponte, a modified version of the Federal Rules of Civil Procedure, a major change in the way the courts of Mississippi handle cases. The new rules drastically raised the cost of litigation and thereby tilted the playing field in favor of clients with money and large corporations. There was ranting from some legislators and commentators at the time, but changes in court rules are not the kind of acts calculated to arouse outrage in the public, and so the matter was soon forgotten.

Of course, the effects of the rules have persisted and our civil judicial system has changed radically since 1970, in large part because of the changes in the rules. Injured plaintiffs and their attorneys know very well what the Rules of Civil Procedure have done to make it more and more difficult to get justice from the courts.

One of the annoying phenomenon in the legal community is the incessant whining over the clogged court dockets by the very lawyers and judges that were responsible for the rules that caused the clogging. It reminds me of Republicans complaining that the government can’t do this or that, when the Republicans themselves crippled the very agencies that were supposed to do the job.

Katrina, anyone?

Now the hard-right majority on the court wants to select the chief justice. Clearly, the purpose is to either prevent Bill Waller, Jr., or—more likely--Gerald Diaz, who is next in line after Waller, to become the chief justice. Diaz is known to be opposed to the hard-right corporatist majority, so it makes sense that the majority would consider changing the rules when the outcome doesn’t suit them. When Jim Smith, the current chief justice, retires, they can agree among themselves to elect Waller as chief justice, but eliminate Diaz as presiding justice and later as chief justice.

I am reminded of the threat by U. S. Senate Republicans a few years ago to abolish the filibuster, a move they would deeply regret today had they been successful then. There is a mentality of the hard-right that regards rules as something to be changed whenever a different outcome is desired, but without thought to the almost certain eventuality that the worm will turn and they themselves will be hoisted upon their own petard. Of course, that is when we will hear a paean to the virtues of bipartisanship and fair play.

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1. §93-3-11 Mississippi Code Ann. (1972)
2. §144, Mississippi Constitution (1890)
3. See, for example, Newell v. State, 308 So.2d 71, 76 (Miss. 1975)

Addendum:

The majority recently voted not to allow publication of a Diaz dissent but changed their mind when the media called. This is a first. Things are getting really nasty up there.

I was a law clerk at the Supreme Court in 1979. To think that I once aspired to sit among that crowd!