Interview #8 – Bill Mims

Justice Bill Mims currently serves as the hundredth justice of the Virginia Supreme Court. He is the second person to ever serve as a member of the General Assembly, attorney general, and Supreme Court justice. Justice Bill Mims received his A.B. in history from the College of William and Mary (1979), his J.D. from George Washington University (1984), and his LL.M from Georgetown University (1986).

The following has been edited and condensed for clarity. The views shared here do not reflect nor do they suggest the views of the Virginia Review of Politics.

[0:00] Morgan Lewis (Virginia Review of Politics): Welcome Justice Mims. Thank you so much for being here. I appreciate you taking your time!

Justice Bill Mims: My pleasure. Thank you.

[0:13] Morgan: After majoring in history at William & Mary what prompted you to pursue law in the first place?

BM: I have to answer this question with a smile because it was really a process of elimination. As an undergraduate, I took an aptitude test which showed that I was best suited to be either as a minister or a history teacher or a lawyer. I wasn't really excited about any of the three originally, so I graduated without any immediate plans to go to law school. I did receive a fellowship to do graduate study in political science and public administration. Near the end of the first semester I realized that I was not an academic. I was not going to be getting a Ph.D in those fields. I went to Capitol Hill thinking that I would get a job in Washington. After interviewing for two days I had two potential offers. One was operating an elevator in the Capitol, which was a patronage position from a senator. The other was as a researcher and essentially a gopher for the National Association of Truck Stop [Operators]. With those two potential offers in hand I decided that law school was the best avenue for me. Ironically, after finishing one semester of law school, I wound up getting a good job offer on Capitol Hill and finished law school at night.

[2:00] Morgan: Thank you. We appreciate the stories. Here’s the second question: How have your experiences in the legislative branch as a State Delegate and senator, and in the executive branch as Attorney General shaped you as a Supreme Court Justice?

BM: Interesting question, because my path to the bench certainly has been unusual. Not unique, but unusual. Most justices come up through the judicial ranks. They begin as a local Circuit Judge and then either move from there to the Supreme Court or have an intermediate stop at the Virginia Court of Appeals. Every now and then someone comes out of the legislature to the bench, and every now and then somebody comes from the Office of the Attorney General to the bench. Only one other person has come from the legislature and then the Office of the Attorney General and then has gone to the Supreme Court, and so it gives you a different perspective about the law.

Those who come out of a Circuit Judgeship and then a Court of Appeals Judgeship and on to the Supreme Court have a manner of analyzing cases that they have honed over many years. Those of us who are new to the judiciary tend to be a little bit more free-wheeling in terms of the questions we ask and also our discussions in conference. If all seven members of the Supreme Court came with my unusual path it would not work. I think that we would not have nearly enough structure in our analysis. But I do think it's helpful to have one or two that have come from the legislature or the Court of Appeals or the State Corporation Commission. We can offer up a somewhat different perspective.

[4:08] Morgan: Very interesting. How many of you right now have come from other branches?

BM: There are two of us that were not previously judges: myself and Justice Steve McCullough. Steve was a career lawyer at the Office of the Attorney General, rose to become the Solicitor General: the attorney at the office who deals with constitutional questions and who does the primary appellate arguments to the court from that position.

[4:46] Morgan: Thank you. What is your judicial philosophy and who has helped to shape it?

BM: At the state level we don't speak as often of a judicial philosophy as you would find in the federal court system. So, for example, if you were to look at the United States Supreme Court you can say, “Well there is one who is an originalist or a textualist.” Or, there's someone who believes the Constitution is a living document, or however you want to describe it.  State Court judges have fewer opportunities to express a Judicial philosophy and far fewer times when we analyze constitutional questions. All of us on the state supreme court would describe ourselves as being conservative or traditional in terms of the relationship of the court to the General Assembly. We all acknowledge that the General Assembly in Virginia is the predominant body and that the court presumes that the General Assembly has acted in a constitutional manner. Consequently none of us would want to be accused of legislating from the bench.

That being said, what I have found is that every judge has a judicial voice or a jurisprudential underpinning that eventually shows itself. Ironically, it most often shows itself through that Justice's dissents. When each of us writes for the majority we are speaking for a committee, we are speaking for a group, and our voice as a judge is the group voice. It is the result of discussion and a vote and, if not consensus, then at the very least a majority of the members. But, when one dissents, one speaks for himself or herself, and is not constrained by someone else's thought process. Finally, when one dissents, it is presumably because they have a strong feeling about that issue; they have some passion about it. Because you don't dissent every time you're in the minority. You choose wisely when to dissent. In my case, the philosophy that has come to the surface is one that distrusts centralized power. So in that regard, I think of myself very much as Madisonian. James Madison recognized the depravity of man and recognized that when power is too centralized, it will be abused. Consequently, he made sure that there were checks and balances within our constitutional system. He also distrusted accumulated power. And, as I have written over eight years in dissent, I realize that that is the dominant theme. I have written in dissent on multiple occasions about the topic of sovereign immunity. Sovereign immunity is a doctrine which says that a wrong committed by an actor of the state is often shielded from punishment through the court system. It's an ancient doctrine. As its name implies, it goes back to the sovereign, the king of England who could not be called to account before the courts. In one fashion or another, it has survived until 2017. I would narrow it significantly. I don't believe there is a policy reason that allows it to continue in broad-brush fashion. I'm in the minority with that view, and so consequently I often dissent on that issue.

Just in the past month, we had an issue come before us involving the power that is held by the State Corporation Commission vis a vis the power that is held by the General Assembly. I wrote in dissent that I believed the General Assembly had exceeded its constitutional authority by taking from the State Corporation Commission the ability to set base rates for Virginia's electric utilities. I was actually agnostic as to whether the utility rates would be going up or would be going down, which was the primary political issue that was faced outside of the Judiciary. My concern was that the people of Virginia had made the State Corporation Commission an independent body through our constitution and I believe that its independence was challenged by a law that the General Assembly passed. It was a lonely dissent. I was the only one that did so, but I recognized that it had the same philosophical underpinnings as my dissents on sovereign immunity. Again, I view myself as having a Madisonian view of the Judiciary even though Madison wasn't a lawyer. He could have been; he would have been an excellent one.

[11:28] Morgan: Speaking of James Madison and his philosophy, a few years ago you gave a lecture at James Madison University as part of the Madison Vision Series in which you categorize justice as a virtue. Would you explain to us in what ways to see justice as a virtue, and in what ways you believe individual justice is closely linked with societal justice?

BM: Fortunately, I don't have to rely upon myself to argue that justice is a virtue. Although that view has long been out of vogue in America. Both the Hebrews and the Greeks saw justice as an individual virtue. In Hebrew thought it goes back to Deuteronomy: to the time of The Exodus when the Hebrew people were being formed into a nation. Those forty years in the wilderness were not just a time to wander around. It was a time to begin a civil government. You had enslaved people that were now refugees out in the desert and were wandering, and during that time they were shaped into a nation.

God's very specific admonition to the Hebrew people was to do mishpat, which is loosely translated “justice” in English. If you look at the context it was the administration of the state, but also in how each individual would act. So it was both an individual virtue and a societal command. If one looks later in Hebrew thought, the era of prophets, when Micah said, "do justice, love mercy, walk humbly before God," doing justice was doing mishpat. It was a command to the individual to act justly: to be just from the perspective of their individual capacity.

Let's fast forward to Athens and there, whether one has looked at Aristotle, or Plato, or any other of the Athenian thinkers at that time, there were four primary virtues. Let's see if I can remember each: bravery, wisdom, temperance, and justice. Those were individual virtues. Those were what each individual should strive to achieve, and justice was viewed as the highest of those four. It was the one that was outward looking in terms of the Athenian as a citizen.

The concept of justice as a virtue is one that I would hope that Americans would embrace to a greater extent than we do. We as Americans think of justice in terms of fairness, and that's fine. Fairness is an important aspect of justice. The problem is that it can descend quickly into moral relativism, because what's fair for me might be distinctly unfair for many other people. I am looking only at what satisfies my own ego. When one thinks of justice as a virtue, it is not inward-looking. It is not saying, “I want it to be fair for me.” It is asking what is fair for everyone. I might have to give up something to achieve a greater societal fairness if it's viewed from the perspective of a virtue rather than from this perspective of satisfying my ego.

[16:20] Morgan: Thank you. How would you encourage American citizens to cultivate personal justice and how and how is the virtue of individual justice relevant to academia?

BM: Let me go back to the ego. Actually, I'll even go back to Micah so I’ll again rely upon both the Hebrews and the Athenians. The concept was that you had to be individually just in order to achieve societal justice: that you could not have a just society unless you had just individuals. American political philosophy has to some extent gotten off track by perhaps being too Madisonian. We were formed with a recognition that there is a depravity of man. As Madison said, "no man is an angel."  I wish I could remember the quote directly, but I believe Madison said that if every Athenian were Socrates, a group would still be a mob. In other words, there was a recognition of the imperfection of man, and it's true. We only need to look around to be aware of that.

I would argue that if one wants a just society, one must put themselves individually to the test. One must recognize that “I cannot achieve a just society unless I'm first just when I look in the mirror.” That's difficult. It requires self-reflection. It requires the ability to say, “that is a wrong thought or that is a wrong action that I must atone for. I must make up for it. I must ensure that in the future I will do it better.” Sadly, when I look at some of our national leaders I don't see that level of reflection. I don't see a desire for individual justice. I hasten to add that in some other national leaders I do see it. I was just listening on NPR to Senator Bob Corker from Tennessee, who is someone that I do believe reflects upon individual justice and how it affects his role as the chairman of the Senate Foreign Relations Committee. So I don't want to sound hopeless, but I think that we have to return to first principles.

[19:32] Morgan: Shifting gears a bit, what is the most commonly overlooked area of study young people should pursue in order to become more engaged citizens?

BM: I was looking forward to this question. My answer is in two parts. The most overlooked areas of study that I wish colleges and universities would offer and encourage students to take are a survey of the world's religions, and astronomy. They provide context for all other learning.

Astronomy shows us that we are infinitesimally small from a cosmic perspective. It also, from my view, shows that there must be a creator: that we could not have this universe randomly. I think that it causes one to both ask the appropriate questions and to realize that, contextually, no matter what my ego says, I am a very small part of the world. This may be an apocryphal story, but I heard once of a rabbi who always carried two slips of paper, one in his left pocket, and one in his right pocket that were statements from the talmud. The first one says, "you are but dust."  The second one says, "for you the world was created." If we as individuals remember those two statements, we will be better people. I think that the world's religions survey and a basic astronomy course would help to undergird those two thoughts. Now, that's the first part of the answer.

The second part is history. As much history as one chooses to take, but I wish that every student would take at least two or three history courses over the course of a four-year study. I think that it provides context but also shows that in the words of Barbara Tuchman, "the wheel of history turns." Whatever it is that we are dealing with [now], there have been similar situations in the past that can inform our decisions. If I were to create a university, if I were to create an “Academical Village,” those would be three of the basic courses.

[22:58] Morgan: It sounds like you have a good start! Do you ever encounter conflict between your former partisan role and your current nonpartisan role?

BM: No, for two reasons. First of all, I really failed as a partisan. I was one who generally looked for consensus. I was one who would see if there is any possibility of compromise. I would try to understand where the other partisan group was coming from. Maybe I should say other partisan groups because as a former member of the Republican Party, there was more than one stream of thought within my own party. The challenges that I face as a judge are really not partisan challenges.

However there is tensions as a former legislator who is a judge. As a legislator you essentially are, to use a football term, “doing an open field run.” You have to stay within certain boundaries but you can kind of make it up as you go along. If you see a problem you can say, "let's fix this problem and let's figure out what's the best way to do it,  how much is it going to cost, and who are the groups that need to be involved." You start working on it and hopefully you can come up with a solution. As a judge, you are very much constrained. The boundaries are much clearer and again if you are not going to legislate from the bench, those boundaries can't be crossed. The boundaries obviously include the Constitution, both state and federal, as well as statutes, but the boundaries also include precedent: what judges would call stare decisis, or “a thing decided.” You can't simply say, "well a decade ago a prior iteration of this court decided one thing and now a majority of us don't like it so we're going to decide to do the opposite. We don't have the freedom. Theoretically we could, but we shouldn't have the freedom to simply do that because the Judiciary needs to move slowly, carefully, and with a great deal of reflection. It should be much more like turning an aircraft carrier than a motorboat. I use various metaphors from football to boating, all in sixty seconds! The conflict is that if you are a former legislator you do not want to legislate from the bench so you have to constantly be conscious of not doing so.

[26:18] Morgan: My final question is in two parts. Would you please describe the distinction between the Virginia State Constitution and the Federal Constitution? In what ways do state constitutional interpretation and federal constitutional interpretation interact?

BM: The differences are very distinct and very clear. It's fascinating how the two different documents work together and how they were created to work together. Let's go back to 1776. Sovereignty was held entirely by the king. The power of the state, the power of the people, was focused entirely on one person who had all of it. The entire American Revolution was fought over the issue of sovereignty, and when America emerged in the 1780s as an independent confederation of thirteen states, sovereignty resided initially with the people as an amorphous whole. It was recognized immediately that sovereignty had to be translated to each of the states for government to function. In the era of the Articles of Confederation, the people’s sovereignty resided with the thirteen state governments. That didn't work very well. By the way, during that time, I believe all of the states adopted constitutions.  In Virginia, a constitution was adopted and the sovereignty of the people rested with the legislature. There was a governor and there was a Supreme Court, but they were very much subsidiary branches of the government. The General Assembly was where sovereignty primarily resided.

So, let's now look forward to the failure of the Articles of Confederation and the adoption of the Federal Constitution. In the Federal Constitution, the states gave a limited amount of sovereignty to the federal government, with very strict silos in terms of how that sovereignty could be exercised. The states gave the federal government sovereignty over interstate trade through the Commerce Clause. Likewise, they gave the federal government the sovereignty to wage war because each state could have a militia, but could not have an army or navy sufficient to protect the collection of states. They gave the federal government sovereignty over matters of foreign relations, matters of immigration, things of that nature. They did not give the federal government sovereignty over any number of other things: education, agriculture, etc. In fact, the states specifically said that if a grant has not been given to the federal government, it is reserved to the states and the people of the states.

We've kind of forgotten that as the federal government has broadened, but nonetheless the Federal Constitution remains, and it is very much a limiting document. It tells the government, "you may go this far and no farther." That's where the real tension within the federal system comes because there's always that desire by federal authorities to increase their power. It's a human tendency. It's not like there's something bad about the federal government. It's just that we all are that way. James Madison said that we all were that way. So, that is the function of the Federal Constitution. To a great extent federal judges, who are properly interpreting their role, should be trying to be a check on both the legislature and the executive to prevent that sort of overreach. That's where I believe a federal judge primarily should be focused: “how do we limit the federal government to its proper role?”

Now, let's look at the states. The states are where the sovereignty of the people is supposed to continue to reside. In the state of Virginia, the Constitution was not intended to be a limiting document. It was intended to be a document that describes the function of state government: how each part of state government will interact with each other. It was stated that the legislature would be the seat of that sovereignty. In Virginia for example, there is a presumption that a legislative enactment is in fact constitutional. There has to be a very clear overreach by the legislature before the court will say, "that is an unconstitutional act." There is no such presumption at the federal level, and that again is because of the differing nature of those two documents.

Now if you'll repeat the second part of the question.

[33:10] Morgan: Yes. The second part was, "in what ways do state constitutional interpretation and federal constitutional interpretation interact?"

BM: I just described one way in which they are different, in terms of that presumption of legislative correctness. One way, in the twenty-first century, in which they have come to interact is with regard to the respective Bills of Rights. Let's go back again to the Revolution. The Virginia philosophy of government was to distrust power, so consequently Virginia adopted a Bill of Rights as part of its original Constitution. George Mason essentially created that Bill of Rights, which ensured the right to worship, the right to assemble, the right to free speech, and the various collection of rights that we recognize today. At the federal level, the Bill of Rights was an afterthought. There were some who believed that the federal government would actually be so weak that there would be no need to protect their rights from the federal government because it would never come up. Thank goodness Madison was convinced. This was part of the compromise because there needed to be the promise of a Bill of Rights in order for the states to adopt a constitution. There were those that would not have supported the adoption of a constitution were it not understood that a Bill of Rights was going to follow, and indeed it did with the first ten amendments to the Federal Constitution.

As we've gone throughout the end of the twenty-first century, the interpretation of those rights has become predominantly a federal exercise so the federal government is where you see the limits of the freedom of speech, or the freedom to assemble, or the right to bear arms, or the right to confront witnesses, or any number of other rights contained within the Federal Bill of Rights. State analysis of those issues has tended to simply say, "yeah, we'll do it exactly the same way." If you look at Virginia's version of the Second Amendment, we interpret that to be essentially coextensive with the federal interpretation. If you look at the various first amendment doctrines, they are coextensive with the federal interpretation. What it amounts to is that the federal government has taken over the field of the protection of rights and states have simply said, "me too." Some will debate whether that ought to be the case or ought not to be the case, but to put it in the vernacular, "what is, is what is." That's how it is, and I don't see it changing.

[36:35] Morgan: Thank you so much for all your answers.