Backing up the Supremes

Article by Terryl Rushing Featured Author

Posted March 2018

When I told God that I wanted to be a back-up singer in a Motown band, I think he got confused. You'd think he'd have caught the reference to gold lamé. At any rate, it was 1985; I was about to graduate from MC Law School; and I needed a job. In 1985, MC was definitely considered the "lesser" of the two law schools, and jobs weren't exactly falling out of trees. Some law firms came to interview only grudgingly, barely hiding their intent to offer their open associate positions to Ole Miss graduates. A partner from one firm actually threw my resumé across the table at me and asked, "Who is this 'Frass-Cogg-Na' guy you clerked for?" The same partner observed to a classmate, "With grades like this, you could have gone to Ole Miss." By spring, I was getting nervous, so when a justice of the Mississippi Supreme Court called to set up an interview, I was ecstatic. It paid a whopping $16,000 a year — about half what an associate at a law firm was paid to start (yes, this was the "Dark Times") — but exactly $16,000 more a year than I was getting.

It was a different world then — post Gloria Steinem, but before the "Me, Too" movement. No, the interviewer wasn't supposed to ask me about my plans to start a family, but he did. And, yes, I did tell him that I had no plans, but got pregnant my second week on the job. (And, by the way, the clerkships started right after law school then, because, until the year I graduated, Ole Miss students didn't have to take the Bar Exam.) I guess I should be glad I wasn't being interviewed by the NFL. By the time my son — forever nicknamed after a stuffed bear named "Bebo" — was born, it had all worked out. From the time I was obviously pregnant until … well, now, I guess … I was known at the court as "Little Mother."

Dan Lee hired me as his law clerk. In those days, we were still in the Gartin Building, and chambers were set up to accommodate the judge¹, a secretary, and a law clerk. After the legislature permitted the judges to hire two law clerks, space was carved out in the basement area for the second clerks. We called ourselves "Upstairs" law clerks and "Downstairs" law clerks, but only for geographical purposes, not merit. In fact, I retained the upstairs office for my entire two-year clerkship, and I have since been told that I missed out on a lot of fun.

Sitting upstairs for two years did give me a front-row seat to observe not only my judge, but the workings of the court in general. Anyone who ever met, or appeared before, Dan Lee would agree that he was unique. From my chair, I saw a good man and a fair judge who had some — how shall I put it — eccentricities.

Justice Dan Lee — "Judge Lee" to those of us lucky enough to be in his chambers — grew up in rural Mississippi; he and I could be found, in early summer, eating raw tomatoes like apples, with generous shakes of salt. We'd lean over the sink in the break room, so the juice would have an acceptable place to drip off our elbows. He told me once that one of the real lures of law school was getting out from behind a plow. Judge Lee understood working for a living, and, if he had a bias, it was for the little guys. I never heard him begin a phone call with anything other than "This is Dan Lee." Apparently Mrs. (actually, Doctor Lee) felt the same. I was told that, prior to my clerkship, the Lees threw a party at their home and invited <gasp> not just judges, but staff. The party was catered, and one of the servers came out of the kitchen with a big bowl of colorful liquid. She tripped, and the Lee's beautiful, plush white carpet was suddenly red. I hear that Doc never even looked at the carpet, but lifted the poor lady up and made sure she was alright, wiped her off, and told her the carpet was fine.

Judge Lee had a real problem with utility companies; I'm not sure he ever paid a utility bill on time. The opinions he issued needed to be legally correct, but, even more, they needed to make "walking-around sense." We once argued for two days over whether to use a quote from King Lear in an opinion about a will contest. Like many newly minted lawyers, I was overly impressed with my writing skills and my knowledge, and I guess I wanted everyone to know that this country girl from the Delta read Shakespeare. Judge Lee was the wiser of the two of us, and gently requested that I remove it, saying, "Little Mother, it just won't sound like me." Of course, he was right. On the other hand, I once drafted an opinion that he thought was a little too nuts and bolts, and he handed it back to me with the instruction to "put something Constitutional in it."

The Judge also had a great, but unusual, way to remember case law. He might not be able to precisely articulate the legal theory he was looking for, and he might not be able to remember the parties' names. He'd tell me, though, that he was pretty sure there was a case on point from, oh, about 1966, out of Yalobusha County. The trial judge was so-and-so, and the prosecutor was so-and-so, and go see if I could find it. He was right. Every. Single. Time.

Not only did Ira and I get nicknames working for Dan Lee, but cases got them, too. One case in which the State of Mississippi adopted the Uniform Child Custody Jurisdiction Act (a decision largely influenced by the presence in the record of a highly scandalous photo of the soon-to-be non-custodial parent), was forever known as the "Interstate Jeremy" case. Another case declared that it was legal, under Mississippi's Native Wine Act, to manufacture and sell muscadine wine in Itawamba County. It became known as the "Wine is Fine" case.

The Judge felt strongly that the court should be accountable to the people. He once told me that, in his opinion, being a supreme court justice should be something that caps off a long legal career, not a career position, in order to prevent the intrusion of outside influences. He was accessible — sometimes too much so. A few weeks after an opinion reversing and remanding a capital murder case out of Lauderdale County, the victim's father called Judge Lee. Judge Lee, to everyone's astonishment, took the call and talked to the man for almost an hour. I don't know if the father felt better or worse after the conversation. I do know, though, that Judge Lee's chambers were right under the Great Seal on the front of the Gartin Building, and, like all of the chambers, had floor-to-ceiling glass windows. A few weeks later, I was sitting at my desk when I heard something crash into the glass. Certain that I had been shot, I waited for a few seconds to feel pain. When I didn't, I started looking for blood and bullet holes. Instead, I just saw … feathers. Lots of them, floating outside the window. The Judge promised that he wouldn't talk to any more disgruntled parents, and I found owl decals for the windows.

Judge Lee was not the only character up there; his secretary, Marguerite, was inadvertently hilarious. The judge used to tell me that I was the first law clerk she ever liked; I suspect that doing my own word processing had a lot to do with that. Although she was one of the most ladylike people I've ever met, one day I walked into the office to find her proofreading an opinion with a big frown on her face. When I asked her what was wrong, she said, "This is boring." "What do you mean?" "It's just an old contract case. When are we going to get another rape or murder?"

Of course, we got a look at the other Judges, as well, particularly when Judge Lee was working with them to come to an agreement about an opinion. While there were some strenuous disagreements about outcomes, I never witnessed the hostility that I have heard about with later courts. In fact, I can't imagine anyone raising his voice in front of the gentlemanly Neville Patterson or Roy Noble Lee. The disputes may have been muted; however, they were — nonetheless — , real, although not without humor. In those days, Judge Lee, Justice Lenore Prather, Justice Jimmy Robertson, and Justice Mike Sullivan, all had (or once had) various shades of strawberry blond hair. They tended to vote as a liberal coalition, and they called themselves "The Redheads." When Reuben Anderson joined the court, he also voted with that group. Since Justice Anderson's hair was not exactly a natural auburn, they gave him a bottle of red dye and named him an "Honorary Redhead."

One of the law clerk's duties was to attend oral argument on cases to which they were assigned. It was a treat to once watch a young legislator from North Mississippi named John Grisham argue a case. He was damned good, and I'm not just saying that to get an autograph. On the other hand, I'll never forget the time that an over-zealous Assistant Attorney General referred to the Fourth Amendment as "a procedural nicety." I thought Justice Sullivan was coming over the bench. The funniest incident, however, took place during an en banc session, where a death penalty case and a civil case were being argued on the same day. The civil case was assigned to me, so I went down and sat through both arguments. When it came to the civil case, one of the attorneys, whom we will call "Lawyer X," apparently had an inflated idea of his oratorical skills. In fact, he was downright condescending to the justices, pretty much telling them that if they had a brain in their heads, they'd rule for him. The justices retired to their sanctum sanctorum to consider the cases (a familiar sight was Judge Lee walking to the conference room with his hemorrhoid donut over one arm), and, when he came back to the office, I asked him what they decided. "Oh, we're going to free the murder defendant and execute Lawyer X."

The most profound experience I had at the court actually involved an execution. It was a case that had not been originally assigned to Judge Lee, but after it wound its way back to the state court after all of the collateral proceedings had been exhausted, the original Justice had retired, and we got it. Judge Lee called me into his office and said, "Look, I have no moral opposition to the death penalty in itself, but if my name is going on this execution warrant, we're going to do it right." In those days, executions took place at midnight, after a day of business as usual at the court. The offices all closed at 5:00, and anyone seeking an emergency stay from the court would have to locate a justice on his own. Judge Lee had the Clerk of the Court stay at her post until midnight, as did we. At about 11:45, when there was no request for a stay, Judge Lee called us all (we had marshaled a couple of law clerks from other chambers to help) into his office and announced that we were going to pray for the young man who was about to be executed. At about 12:15, we got word that the prisoner had been pronounced dead. Judge Lee called us all back into his office, where we prayed for the soul of the deceased prisoner, the deceased victim, and both their families. To this day, I get choked up thinking about it, and it motivates me every day to do the best job I can, in my own small way, to facilitate the administration of justice.

They say that no one should watch either law or sausage being made. I don't have any desire to fill casings, but my clerkship at the Mississippi Supreme Court was an experience that I wouldn't trade — even for two years at a much more lucrative associate position. I saw ordinary men and one ordinary woman who were imperfect but did their best to do their jobs fairly and well. Now when I disagree with an opinion, I'm much less likely to assume some nefarious motivation, and I just repeat the mantra, "Reasonable minds may differ." Either that or somebody hired a really dumb law clerk.

1. The terms "judge" and "justice" are used interchangeably in this article. Yes, I know that, technically, the Supreme Court is comprised of "justices," but I've never been corrected when using the friendlier term.