January 4, 2006. Alabama Justice Declares Independence from U.S. Supreme Court.
In an OP-ED piece from the January 1, 2005, Birmingham News, Tom Parker, Associate Justice of the Supreme Court of Alabama derided his fellow state court justices for "fail[ing] to defend our constitution and laws against activist federal judges." Parker criticized the Alabama Supreme Court for following established precedent of the United States Supreme Court.
Parker's outrage is related to the Alabama Supreme Court's recent ruling in a criminal case, Ex parte Adams. (Although no public copy of the opinion has been located yet, the Westlaw cite is: 2005 WL 3506662 (Ala. Dec. 23, 2005).) According to Parker's op-ed, a pregnant Alabama woman was raped and murdered in 1997 and Renaldo Adams was captured soon thereafter. Adams was tried by a jury, convicted, and sentenced to death. Adams was, however, a juvenile at the time of the offense. As a result, the U.S. Supreme Court's decision from last March in Roper v. Simmons came into play. In Roper, the U.S. Supreme Court ruled that the Eighth Amendment's prohibition against cruel and unusual punishment forbids the imposition of the death penalty on offenders who were under the age of 18 at the time of their offense. In Adams' case, the Alabama Supreme Court cited Roper and ruled that Adams could not be put to death. In other words, the Alabama Supreme Court followed the precedent of the highest court in the land.
In the op-ed, Parker complains that
[his] fellow Alabama justices freed Adams from death row not because of any error of our courts but because they chose to passively accommodate -- rather than actively resist -- the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.
and argues that
[t]he proper response to such blatant judicial tyranny would have been for the Alabama Supreme Court to decline to follow Roper in the Adams case. By keeping Adams on death row, our Supreme Court would have defended both the U.S. Constitution and Alabama law (thereby upholding their judicial oaths of office) and, at the same time, provided an occasion for the U.S. Supreme Court, with at least two new members, to reconsider the Roper decision.
Parker asserts that
State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the Court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are "precedents."
After all, a judge takes an oath to support the constitution -- not to automatically follow activist justices who believe their own devolving standards of decency trump the text of the constitution. Thus, faithful adherence to the judicial oath requires resistance to such activism, and a changing U.S. Supreme Court membership makes such resistance more likely to bear good fruit.
Steve Vladeck, at PrawfsBlawg posted about this yesterday. Vladeck blasts Parker, especially for the last portion of the op-ed that I quoted above, pertaining to the prerogative of state Supreme Court justices to disregard precedent of the U.S. Supreme Court when they feel the U.S. Supreme Court was "wrong." Vladeck comments
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).
As the nine Justices collectively wrote in Cooper:
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.
Wow. That's really all I have to say.
Professor Berman, at Sentencing Law & Policy has also weighed in with some thoughts in this post. Berman notes that not only does Parker show his passion, but he also shows an inability "to count heads" in arguing that the "new" Supreme Court should be given a chance to overrule Roper. According to Berman
These quotes highlight not only Justice Parker's passion, but also his limited ability to count heads. None of the new Justices are replacing anyone in the Roper majority, so it would be quite a feat for a Roberts Court to undue Roper.
Moreover, I continue to find it remarkable that persons purportedly concerned about pro-family policies and evangelical Christian blessings become so aggrieved by a decision which precludes states from executing juvenile offenders. I wonder if Justice Parker has read the recent editorial series from his own Birmingham News, entitled "Choosing Life in a Death Penalty State," which forcefully argues that a true pro-family, evangelical Christian commitment to a culture of life calls for doing away with the death penalty altogether.
Finally, I wonder if Justice Parker thinks that state supreme courts ought to actively resist the application of other contentious SCOTUS rulings like Gideon or Miranda or Blakely.
Even some amongst the more conservative side of the blogosphere are having a hard time supporting Parker on this one. Further, ironically(?), Appellate Law & Practice notes that Parker, despite his criticisms of the use of "foreign" law to help shape policy and/or decisions in the United States, studied law at the University of Sao Paolo School of Law, in Sao Paulo, Brazil, pursuant to a fellowship received from Vanderbilt Law School.
(**UPDATE: If you follow the links above to Prawfsblawg and Sentencing Law & Policy, take the time to read through the comments posted on each. There's a pretty good debate going on about whether State appellate courts are, in reality, obligated to follow U.S. Supreme Court precedent or not. Additionally, take a look at the post and comments here at CrescatSententia on the subject. Also an interesting read.**)
(**UPDATE 1/16/06: There is an editorial in the Decatur Daily criticizing Justice Parker's editorial today, Monday, January 16, 2006. See Kierkegaard Lives follow-up post.**)
posted by Kierkegaard Lives at 9:49 AM
1 Comments:
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.
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