Marshall Ramsey’s September 3 cartoon, depicting Governor Bryant as a Confederate soldier writing home about defending the flag on order of the “Yankee Supreme Court,” is quite clever and well-drawn. The immensely-talented cartoonist is a credit to the State of Mississippi. This particular cartoon, however, may perpetuate recent indistinct and misleading news reports. Counter to published reports in various news media, including the New York Times, Washington Post, and ABC News, the Supreme Court of the United States has not asked the State of Mississippi or Governor to defend the battle emblem on the Mississippi flag.
The News Reports
On August 29, 2017, the Associated Press broke the flag news with a story stating: “The U.S. Supreme Court is asking attorneys for Mississippi’s governor to file arguments defending the Confederate battle emblem on the state flag.” The story was quickly picked up by national and local media. Curiously, the reports were devoid of quotations or reference to any official court document.
The actual U.S. Supreme Court docket tells a different — or more precise — story.
The Flag Litigation
The private lawsuit challenging the Mississippi flag was filed in the U.S. District Court for the Southern District in Mississippi. Judge Carlton Reeves — a UVA law graduate, Obama appointee, and Article III lifetime federal judge — ruled September 8, 2016, in a 32-page opinion, that the plaintiff had no standing to bring the suit and the federal court therefore lacked jurisdiction. Citing a U.S. Supreme Court case, Judge Reeves stated: “The Article III standing requirement, ‘which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.’”
A three-judge panel of the Fifth Circuit that included two Obama appointees unanimously affirmed the lower court ruling on March 31, 2017 (http://www.ca5.uscourts.gov/opinions/pub/16/16-60616-CV0.pdf). Still, on June 28, 2017, the plaintiff renewed his quest by filing a Petition for a Writ of Certiorari, a formal plea that the U.S. Supreme Court hear the matter. On July 10, 2017, the Governor of Mississippi waived the right to respond to the petition. Such petitions are routinely denied and the two lower court opinions fully addressed the jurisdictional issues.
The Supreme Court
The misinterpreted August 29, 2017 action of the U.S. Supreme Court is described on the court docket as “Response Requested. (Due September 28, 2017).” The underlying document turns out not to be an order but rather a letter from the Clerk of the Court requesting the attorney for the Governor file a response to the plaintiff’s petition that the high court take up the matter. There is no mention of “defending the Confederate battle emblem.” The sole issue before the U.S. Supreme Court concerns the constitutional authority of the federal courts to even entertain the lawsuit.
Procedurally, four of the nine Supreme Court Justices must vote in favor of even considering the jurisdictional issue petition. Assuming that statistically improbable event happens, the Court would then consider whether the two lower federal courts botched the jurisdictional issue. If a majority of the Supreme Court Justices votes to overturn the lower court ruling, the trial court could finally take up the case on the merits.
News reports to the contrary, the U.S. Supreme Court has not asked the State or Governor to defend the battle emblem.
The People & the Flag
Our system of government involves three branches, all playing distinct roles. The judiciary – the smallest and least representative branch – was not established to address political issues. The divisive flag issue is one for the Legislature or the People.
Personally, I favor the flag design replacement proposed by Laurin Stennis.
READ THE CLERK’S LETTER HERE — SCOTUS Clerk Letter 082917
» Ben Williams, the author, is a Mississippi attorney. Email Ben at MBWJ@aol.com. Ford Williams, the artist, is a sophomore at the Savannah College of Art & Design (SCAD).