WWHD? (What Would Hurst Do?)

Sorry to double up – I already tweeted the link, but I’m still amused by the paid ad at JJ where AG candidate Mike Hurst lambasts Jim Hood for his “lack of leadership in defending Mississippi’s Constitution to responding to SCOTUS ruling” (that is GOP grammar).

Hurst (1) calls the ruling “judicial activism” and agrees with Scalia it’s a “threat to American democracy” (hm, wonder if that’s what Hurst thinks about Shelby County?); (2) says Christians should love everyone; (3) attacks Hood for supposedly not advocating strongly on behalf of the ban, with a swipe at poor Justin Matheny (who, as the linked article said, had trouble articulating a rational basis for the ban … was that the fault of the lawyers, or of the ban?); (4) faults Hood for conflicting statements the day of Obergefell and the following Monday (fair enough); and (5) complains that Hood advised clerks wishing to resist the U.S. Supreme Court that they should seek advice of counsel, rather than himself providing advice. (“You want to resist a U.S. Supreme Court decision? Good luck with that” is, I think, perfectly sound advice from an attorney general.)

None of this says just what Mike Hurst would have done differently, or how Hurst’s advocacy in the Mississippi case would’ve made a hill of beans’ worth of difference given that this issue was decided by SCOTUS in a Sixth Circuit case. If Hurst is going to criticize someone else’s leadership, one might think he would give an example of how he would lead, rather than demonstrating his qualifications for criticism from the sidelines. Heck, even bloggers can do that.

… Gov. Bryant has flopped, doubtless on the wise advice of counsel, and told the Fifth Circuit he has no basis to oppose its lifting the stay on Judge Reeves’s order striking the gay-marriage ban. We will keep our eyes peeled for Hurst’s statement criticizing the Gov.

Back when a judge was a judge …

David McCarty on Twitter draws our attention to the old Mississippi case of Nevitt v. Bank of Port Gibson, 14 Miss. 513 (1846), back when the state’s high court was called the High Court of Errors & Appeals. Justice Thacher wrote a lengthy dissent, which concludes:

It has been with extreme reluctance that I have differed with the majority of the court on the questions involved in this important case; but, with my views of the law, I could not conscientiously do otherwise. The statute of this state provides that “any judge of this court, differing in opinion from a majority of said court, shall reduce his opinion to writing, and the reasons therefor, and shall file the same among the records of said court, and any judge of said court, neglecting or refusing to comply with the provisions of this section, shall be deemed guilty of a misdemeanor in office, and shall be liable to a removal therefor.” H. & H. 531, s. 5.

Now that was an awesome statute. Would that we had it today.

… “H. & H.” is presumably “Howard & Hutchinson,” the 1840 statute book, predecessor of Hutchinson’s Code.

My slightly odd thought on why gay marriage is properly legal: gays = witches???

Last weekend, I was trying to articulate to some unsympathetic listeners why I agree that gay marriage should be legal, and had some “backstairs” thoughts afterwards that I wish I’d advanced. Continue reading

The people’s Court?

News update at MSSC:

Supreme Court building south entrance to open July 1
June 29, 2015

Visitors to the Mississippi Supreme Court, Court of Appeals, Law Library and other court entities will be able to enter the Courthouse from the south plaza facing High Street starting July 1. The east entrance, which has been used since the building opened in 2008, will remain open.
Construction continued for three years after the building opened. Completion of the columned south entrance was part of the final phase of construction. The south entrance had remained closed due to lack of funding for security staff. The 2015 Legislature granted the judiciary’s request for funding for security equipment and staff to allow the entrance to open.

Epic-level burning Bush

Via DeLong, Yglesias:

Wait, there’s a George W. Bush Institute?
Yes. Having presided over the only presidency since Herbert Hoover in which the country lost jobs, the worst terrorist attack in American history, and a costly invasion of Iraq whose purpose was to destroy a nuclear weapons program that didn’t exist, George W. Bush decided he could not deprive the world of his policy insights upon retirement.

The rhetoric of the Roberts opinion for the Court in King v. Burwell

So I gather you may have heard that the Court affirmed the 4th Circuit, 6-3 (thanks, New Yorker, for teaching me that should be an en-dash), with The Dread Traitor Roberts writing for the Court. Roberts has a deserved reputation as a wizard of legal writing, and today’s op is no exception. This post isn’t anything like a full analysis; rather, we just look at some examples of his legal rhetoric.

It’s not (just) about zingers, as Scalia could afford to learn. The first graf of the opinion is a superbly concise, clear description of Obamacare: Continue reading

May a lawyer ethically advance opposite legal positions for different clients?

The Appellate Section of the Miss. Bar had a good CLE last week at the Supreme Court. Luther Munford gave a useful and interesting presentation on ethics in appellate practice, in which one issue jumped out at me: conflicts of interest. When may an attorney advocate opposite legal positions on behalf of different clients? Continue reading