The Mississippi Chapter of the Federalist Society and the Mississippi College Law Review each recently released research on the Mississippi Supreme Court. The former examined the nature of restraint or activism in the Court's decisions while the latter looked at quantitative numbers in case results both as the justices acted and as the Court decided.

For the Federalist Society, Kyle Duncan authored a white paper entitled, "On the Side of the Angels?: Updating the Mississippi Supreme Court's View of the Judicial Role, 2004-2008."

Duncan appropriates his title from the words of James Madison in Federalist 51, who writes on the separation of powers doctrine, "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." Madison argues each branch of government, neither composed of nor directed by angels, must be limited by the other branches to avoid man's natural power hunger from usurping jurisdiction.

Duncan writes, "Perhaps more than any other public official, judges are tempted to extend their power, in order to solve, directly and creatively, the pressing matters of justice in the cases before them. If improperly exercised, the judicial power distorts the balance of governmental authority in favor of our least-accountable officials. As with any public official, once judges have broadened powers - whether properly constituted or not -they prune them rarely." Duncan has good news, "However, the Mississippi Supreme Court has, over the past three decades, proven the exception."

In reviewing cases, Duncan notes several examples from the Mississippi Tort Claims Act, "a law that makes hard choices in painful cases - just those cases in which activist judges are tempted to do 'justice' in disregard of the law's terms and the judges' own legitimate power." While faced with tough decisions, the Mississippi Court tends to practice restraint, seeking not to find the answers in their own judgment, or even the intent of the legislature, but to find the answer in the intent of the statute.

Duncan describes a Court that rejects activism and practices restraint as a matter of course involving statutory construction and standing. He mentions a few exceptions including one where the "majority only declined to discard an apparently longstanding rule, albeit one not anchored to any statutory mandate." In choosing precedent over the law, the Court embraced an activist relic of the past, but did not extend its power further. Even in its rare activism, the Court restrains itself.

Duncan also examines the role of political decisions, where activism is most tempting. In the Barbour v Hood case concerning the date of the special election for the unexpired term of former Sen. Trent Lott, the Court, rather than inserting itself in election matters, practiced restraint and deferred to a governor's reasonable interpretation of statue. The Court noted the Legislature can clarify the ambiguity in the future.

Preliminary research from the Mississippi College Law Review suggests the split in opinion by justices in Barbour v Hood is oft repeated. "We sought to gather information on the Mississippi Court's treatment of plaintiffs and defendants in various contexts, the Justices' patterns of voting together, and their tendencies to author majority, dissenting, and concurring opinions," writes editor-in-chief Lindsey N. Oswalt in her editor's note.

The research suggests what any political observer would note: there is a sharp divide in the Court. The civil case split generally allies Chief Justice Jim Smith with Justices Bill Waller, George Carlson, Jess Dickinson and Mike Randolph on one side. On the other side are Justices Oliver Diaz, James Graves, and Chuck Easley. Concerning criminal cases, the division remains the same except Easley joins the majority leaving Graves and Diaz on the minority. (This research does not include Justice Ann Lamar or her predecessor Kay Cobb).

The purpose of the Law Review research is to show what is, but not what should be. It makes a specific note in its civil case research that the data, "does not reflect the court's dispositions on any particular topic" and "the Law Review is not blind to the political ramifications" of misinterpreting the data.

The Law Review is correct. Evaluating the results of a Court in a vacuum, absent the law and the facts, can be problematic. The judiciary is to rule on the law and the facts as is, not as should be. Fairness cannot be determined solely by quota with equal rulings for the prosecution and defense; plaintiffs and defendants.

The Law Review research does show that even the most opposite of Mississippi Supreme Court justices agree more than they disagree. And, the Federalist Society study shows the majority on the Court continues to practice judicial restraint. It benefits the people, particularly in a state such as Mississippi that elects judges, to have this research available.

Brian Perry of Jackson, a former congressional aide, is a partner in a public affairs firm. Reach him at