Tuesday, January 03, 2006

True Activism

Tom Parker is a Justice on the Alabama Supreme Court. He is, I presume, a very intelligent man, with an undergraduate degree from Dartmouth and a law degree from Vanderbilt. But I am at a loss to explain this op-ed, where he blasts his follow Alabama Justices for not ignoring the Supreme Court's clear precedent in Roper v. Simmons. Specifically, he argued the following:
You see, my fellow Alabama justices freed [Renaldo] 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.
The 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.
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."

Justice Parker has to know better than this. Inferior court judges are not at liberty to simply ignore precedent because they see fit. And there is no warrant to suggest that the only reason they do follow said precedent is because if they choose not to, the Court will overturn their verdict. Precedents serve to provide stability and predictability in our judicial proceedings, both attributes conservatives should love. Judges who ignore superior court mandates are engaging in clear activism--ignoring the strictures of law in favor of their own personal whims and desires. There simply is no way around it.

Steve Vladeck comments further:
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).

It's ironic that the already barely plausible justification Justice Parker gives for his activism, that the new judges on the Supreme Court may assist in overturning Roper, is virtually inconceivable. As is noted by Douglas Berman, none of the judges being replaced were part of the Roper majority, so even if all of the new appointees vote to overturn (and given all the pains Alito and Roberts have taken to assure us they "respect precedent", that may not be a sure bet), the result wouldn't change unless the newbies could persuade a member of the majority to defect.

But for me, the kicker is this quote from Parker's own court biography (first link at the top of the post):
Justice Tom Parker was elected to the Alabama Supreme Court in November 2004. Immediately prior to that, he was the Special Projects Manager for The Foundation for Moral Law, where he coordinated a federal legislative effort, under Article III, Section 2 of the U.S. Constitution, to combat judicial activism.[emphasis added]

My how the proud have fallen. Or perhaps "combat[ing] judicial activism" was always code for implementing conservative policies?

One final note I'd like to add. Many commentators are saying that a judge merely writing an op-ed attacking an opinion by one's colleagues is in itself reprehensible. I'm open to being persuaded on the matter, but I have to admit that aspect doesn't bother me. This editorial does not strike me as substantially different than something Parker would have written as an "angry dissent" if he hadn't recused himself from the case at hand. I do think that his recusal was appropriate in this case, to be sure. And I know that judges traditionally have not participated in the rough-and-tumble of mainstream journalism. But I fail to see why what would have likely been his same words in a dissenting opinion become inappropriate when written in an editorial.


Pooh said...

Remember, judicial activism means "judgifying I don't like"...

Anonymous said...

I generally agree with you, but to say that a state Supreme Court is “inferior” to the US Supreme Court oversimplifies an issue. While state supreme courts must follow the Supreme Court’s dictates on questions of federal law (including the US constitution), they exercise their own judgment as to state law, and all courts must follow the state supreme court when it comes to questions of that state’s law.

Craig R. said...


Uhh, no.

That is not how it works.

The federal court precedent is binding on *all* lower courts, not just in matters of federal law.

This is, excuse the expression, long-settled precedent.

Anonymous said...

As a practical matter, federal courts rarely rule on state law, or, if, in applying it, they take an “Eerie guess” as to what state law is. If they don’t wish to do this, they either “certify” the issue to a state court, or employ an abstention doctrine, allowing the state courts to adjudicate the issue. (State courts are under no obligation to hear questions certified to them by federal courts, and some state courts don’t even have the procedures for hearing such certified issues.)

By the same token, lower federal courts are not (directly) binding on state court as to federal law. So, for example, a Court of Common Pleas judge in Pennsylvania, the Pennsylvania Supreme Court, or the Pennsylvania Superior Court need not follow the 3d Circuit in interpreting questions of federal law. Depending on semantics, some argue that collateral attacks in federal courts upon state convictions (i.e. petitions for writs of habeas corpus) force state courts to follow federal courts (since any person convicted of a crime would be ordered released immediately). However, AEDPA provides that District Courts and Courts of Appeal are only bound by the US Supreme Court in when adjudicating a petition for habeas corpus (and must not vacate the conviction if the state court’s interpretation of the constitution was “reasonable.”) However, some speculate that this part of AEDPA might be unconstitutional, itself. For more information, you can see Wright, Miller & Cooper, Fed. Prac. & Pro.: Jurisdiction 2d
Sec. 4248 at n.67 (1988 & 1998 Supp.).

So, Craig, it is you that is wrong, and you owe the above poster an appology.

Craig R. said...

Anon 2 -- Since I presume you are not the initial "anon", else I would not expect the reference as a third-person.

I was imprecise in the term "federal court," biut was presumng that the context woiuld be seen to be applying to the U.S. Supreme Court (see the quoted portion of the comment), not one of the district courts.

You will admit that decisions of the U.S. Supreme Court are superior to and binding on all other civilian courts in the U.S.?

Anonymous said...

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.

James Fletcher Baxter said...

The missing element in every human 'solution' is
an accurate definition of the creature.

The way we define 'human' determines our view
of self, others, relationships, institutions, life, and
future. Important? Only the Creator who made us
in His own image is qualified to define us accurately.

Many problems in human experience are the result of
false and inaccurate definitions of humankind premised
in man-made religions and humanistic philosophies.

That human institution which is structured on the
Order of the universe. The opponents of such a system are
necessarily engaged in a losing contest with nature and
nature's God. Biblical principles are still today the
foundation under Western Civilization and the American
way of life. Psalm 25:12 To the advent of a new season we commend the
present generation and the "multitudes in the valley of

Let us proclaim it. Behold!
The Season of Generation-Choicemaker Joel 3:14 KJV