I don't know what the deal is with Alabama judges, but Tom Parker of the Alabama Supreme Court seems to want to follow in Roy Moore's footsteps. After a recent case that he had recused himself from went against what he'd hoped, he wrote an op-ed piece blasting his fellow justices for "surrender[ing] to judicial activism." It was a death penalty case where the man convicted was a minor at the time of the crime, and Parker was the state prosecutor in the case so he had to recuse himself. On appeal, the Court changed his sentence to life in prison because the US Supreme Court had ruled in the meantime in Roper v Simmons that it was unconstitutional to give the death penalty if the crime was committed by a minor. And Parker is arguing that the state court should have ignored the Supreme Court's ruling because he thinks it was wrong. he writes:
Those liberal justices declared last spring in the case of Roper v. Simmons that "evolving standards of decency" now make it "unconstitutional" to execute murderers who were minors at the time of their crime. The justices based their ruling not on the original intent or actual language of the United States Constitution but on foreign law, including United Nations treaties.
This is false, and extremely sloppy, if not outright dishonest, for a state Supreme Court justice to state this way. While Justice Kennedy's decision did reference some foreign precedents, that was not the basis for the ruling and the text of the decision makes that clear. Kennedy's decision followed prior court precedents by looking at questions of national consensus and evolving standards of justice, as indicated by the history of states changing their litigation. Now, one can certainly raise legitimate questions about whether such a standard is the correct one to use in making such a decision (and frankly, I think the constitutional basis for it is pretty thin), it's just not honest to pretend, as Parker does, that the Court was "insisting that American states submit" to treaties and foreign court precedents.
Section III of the ruling goes into great detail on the actual basis for the ruling, looks at the history of states outlawing the execution of minors, at all of the relevant precedents, and at the scientific and psychological data. Only after all of that, in section IV, is there any mention of foreign courts and legislatures, and the ruling explicitly states that this is being viewed for confirmation of consensus only, not as precedental value:
Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility.
Kennedy also lists numerous prior court decisions that had referenced the views of "other nations that share our Anglo-American heritage" for support. Again, one can legitimately disagree on whether the Court should have included that information, but it's still dishonest to claim that the Court had "based their ruling" on it. The text makes clear that they did not. Parker continues:
I am not surprised that the liberal activists on the U.S. Supreme Court go to such lengths to usurp more political power. I am also not surprised they use such ridiculous reasoning to try and force foreign legal fads on America. After all, this is the same Court that has declared state displays of the Ten Commandments to be unconstitutional.
But I am surprised, and dismayed, that my colleagues on the Alabama Supreme Court not only gave in to this unconstitutional activism without a word of protest but also became accomplices to it by citing Roper as the basis for their decision to free Adams from death row.
This is exactly what Roy Moore tried to argue when a Federal court ordered the removal of his Ten Commandments monument. In essence, "I don't agree with them so I don't have to do what they say." Well I'm sorry, but yes you do. Roy Moore found that out when he was removed from the Alabama Supreme Court for refusing to follow a binding Federal court order. George Wallace found that out when he tried to ignore a Federal court order a generation ago as well. When it comes to interpreting the Federal Constitution, the Federal courts do indeed overrule the state courts.
Steve Vladeck of the University of Miami Law School, writing at PrawfsBlawg, makes the same point:
This strikes me as not only very wrong, but also very dangerous. As pertains to interpretations of the U.S. Constitution, the U.S. Supreme Court is the ultimate arbiter, and its decisions are binding on every court in the United States, no matter how "wrong" it may be. State supreme court judges who think they're not bound to follow the federal Supreme Court's reading of the federal Constitution might want to re-read Article VI thereof (not to mention Marbury and, at the very least, Cooper v. Aaron).
That Parker would take such a position is hardly a shock. Prior to taking his seat on the Supreme Court, he worked for Roy Moore's Foundation for Moral Law. And Moore, as mentioned previously, took the same position. They are both wrong. A state court can no more ignore this precedent because they disagree with it than they could ignore Miranda or Lawrence. Like it or not, when it comes to matters of constitutional interpretation, the US Supreme Court does indeed hold the trump card.
- Log in to post comments
"I am also not surprised they use such ridiculous reasoning to try and force foreign legal fads on America. After all, this is the same Court that has declared state displays of the Ten Commandments to be unconstitutional."
What has that got to do with foreign legal fads? Many (most?) foreign countries have established churches. Those that don't tend to have secularism written into their constitutions, which hardly makes it faddish.
Oh, and one of those countries with secularism written into the constitution is, er, the United States.
I suspect that, to Parker, the rest of the USA is a foreign country, whose "legal fads" are alien to him and his kind.
"The justices based their ruling not on the original intent or actual language of the United States Constitution but on foreign law, including United Nations treaties."
It seems that Parker must be trying to garner the attention of the Family Research Council and get himself on the speaker's program for Justice Sunday III. The foreign influence rhetoric is a major piece of those Sunday sermons including the recently flip-flopping Santorum.
This person is a jacka$$. Apparently he has not read the Constitution:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding"
Direct quotation from Article VI.
Anyone who is part of a foundation for "moral" law is suspect. Of course I am curious what is moral about executing minors or the mentaly ill for that matter. I am haunted regularly by an image I got from Molly Ivans writing about a man executed in Texas. He had very specificaly requested tapioca pudding as the most important part of his last meal. When he refused to eat it his guard asked him why he wouldn't eat it. He replied; "I'm saving it for later." His i.q. was 42 if I recall correctly.
Parker's article, which disparaged his fellow justices on the state Supreme Court, focused on their decision to abide by a 2005 U.S. Supreme Court ruling (Roper v. Simmons) that reinforced an earlier decision which had struck down state laws allowing for the execution of minors.
The decision of the Alabama justices was 8 - 0, Parker recused himself, in favor of instructing the Alabama Criminal Court of Appeals to decide whether the Roper decision requires the court to change the death sentence of a minor, Renaldo Adams, to life without parole for the gruesome murder of a pregnant Alabama woman.
Justice Parker recused himself from the Adams case because he had been involved in the prosecution of the case as an assistant to Attorney General Bill Pryor, not Jeff Sessions as he mistakenly claims in his article.
Parker regards his fellow justices' decision to follow the U.S. Supreme Court's precedent "...as a failure to defend our U.S. Constitution and laws against activist federal judges." Moreover, Parker accuses them of passively accommodating rather than actively resisting the unconstitutional majority opinion of the U.S. Supreme Court.
While Parker is correct that Roper is another example of judicial activism, the decision by his colleagues to abide by the higher court's ruling does not constitute a failure to defend the U.S. Constitution nor is it passive accommodation of judicial activism. The other eight justices were in fact upholding the rule of law because all judges are bound by precedent.
Conservative judicial activism is no more acceptable than liberal judicial activism because in the end both lead to an undermining of the public respect and trust of the law. Consequently, by advocating that conservative judges engage in judicial activism by refusing to uphold the precedents of the U.S. Supreme Court, Parker himself fails the test of judicial restraint.
This does not mean that precedents cannot be challenged.
Parker is correct in advocating that precedents such as Roper may be challenged in order to have them reviewed. But the proper venue for challenging precedents is outside a judge's chambers. The most suitable officials for challenging precedents are state attorney generals or governors. Because every lower court judge is bound by precedent, it is up to the attorney general or governor to appeal their case all the way to the U.S. Supreme Court which is the only judicial body that can change a precedent.
Unfortunately, Parker appears to have also misinterpreted the Roper majority's attitude toward the failure of lower courts to uphold precedent.
He apparently concluded that because the majority in the Roper decision did not reprimand the Missouri Supreme Court for failing to follow precedent in a previous ruling (Stanford), that they were somehow sending a message to other state courts that they were also free to ignore precedent. However, in his dissent on Roper, Associate Justice Antonin Scalia, took strong exception to the fact that the majority failed to admonish the Missouri court "...for its flagrant disregard of our precedent in Stanford."
Furthermore, Scalia, arguably the most conservative justice on the U.S. Supreme Court, reinforced the idea that lower courts are bound by precedent stating that "it is this Court's prerogative alone to overrule one of its precedents." He concluded his dissent with the perspective that allowing lower courts to ignore precedent and leave the U.S. Supreme Court's decisions without any force "...destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos."
Given Scalia's strong affirmation of precedent in his Roper dissent, would Parker now paint Scalia with the same brush he has applied to his fellow justices on the Alabama Supreme Court? Would he also disparage Scalia as he has his fellow justices by claiming that his defense of upholding precedent is tantamount to surrendering his conservative credentials? Yet what the other eight justices on the Alabama Supreme Court did in the Adams case is exactly what Justice Scalia said they should do-they followed the precedent.
It is distressing to see a member of the Alabama Supreme Court undermine the decorum of the court by attacking the credibility of his fellow justices, all of whom can legitimately lay claim to solid credentials as conservatives and constructionists when it comes to abiding by and upholding the U.S. Constitution.
By writing the article, Parker himself demonstrated a lack of judicial restraint and that is no way for a member of the state's highest court to conduct himself. Furthermore, advocating that state courts should refuse to uphold the precedents of the U.S. Supreme Court is, as Associate Justice Scalia wrote in his Roper dissent, no way to run our legal system either.