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Saturday, March 10, 2012

Pardons in Mississippi: On the Role of the Supreme Court

In a 6-to-3 decision, the Mississippi Supreme Court ruled that pardon procedures lay outside of its constitutional authority—that to interfere even in cases where those procedures were flouted would violate the separation of powers. Section 124 of Mississippi’s Constitution “gives pardon power exclusively to the governor, but also requires applicants to have their petitions for pardon ‘published for 30 days, in some newspaper in the county where the crime was committed.’” This is constitutional language, and yet the Supreme Court refused to determine whether Haley Barbour had acted unconstitutionally in all but 22 of the 200 pardons he had granted in his last days in office. In other words, the Court’s function in interpreting the constitution is at odds with the principle wherein the three branches of the Mississippi government are separate—none being directed by any of the other two.

In his majority decision, Justice Jess Dickinson wrote, “While this court clearly has the constitutional duty to interpret the content of laws passed by the Legislature and executive orders issued by the governor, we decline—as we have so many other courts before us—to assume for ourselves the absolute power to police the other branches of government in fulfilling their constitutional duties to produce laws and executive orders, unless there is alleged a justifiable violation of a personal right.” In a dissent, Chief Justice William Waller argued that the Constitution puts limits on the governor’s pardon power, and the court is obliged to make sure those limits are not crossed.  As those limits are set in the constitution rather than by statute, the Supreme Court as interpreter of the Constitution is justified—indeed even obligated—to determine whether an executive order violates the language and is thus unconstitutional.

If judicial review were subject to the separation of powers doctrine, then the Supreme Court of Mississippi could only assess the constitutionality of the judiciary’s decisions and protect the rights of individuals from governmental action—though even here such protection could be interpreted as being at the expense of the legislative or executive branch and thus violating the separation of power between the three branches. Furthermore, assuming that the chief executive of Mississippi might somehow police the constitutional limitations on himself puts him in a conflict of interest with respect to himself. A conflict of interest is also in play, by the way, in Haley Barbour pardoning prisoners who worked at the governor’s mansion.

To be sure, a conflict of interest also applies when a Court applies constitutional interpretation to itself. It would be advisable, therefore, for Mississippi to create a constitutional court whose role is only to interpret the Constitution. Such a court could thus apply constitutional scrutiny to other courts in Mississippi without so much of a conflict of interest (there still being some, the Constitutional Court being in the same branch).

In short, the referee should not do anything else with respect to the game, and none of the game rules should be off limits simply because it applies to one of the other players. To rely on the legislature to keep itself within constitutional bounds or likewise in the case of a joint figurehead and chief executive of a government does not take seriously the function of a constitution to keep a government within certain limits of power. To expect power to police itself is sheer folly.

Campbell Robertson, “Highest Court in Mississippi Upholds 9 Pardons,” The New York Times, March 9, 2012. http://www.nytimes.com/2012/03/09/us/mississippi-supreme-court-upholds-9-pardons-by-haley-barbour.html