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.**)