Wednesday, January 04, 2006

It can't be precedent. The facts are different.

When Gov. Faubus didn't like the Brown opinion, he simply decided that it was inconsistent with his authority: "The Governor of the State of Arkansas cannot and will not concede that the United States . . . can question his discretion and judgment as chief executive of a sovereign state when he acts in performance of his constitutional duties," he told a federal district court in Aaron v. Cooper. This "interposition" of state authority between the federal courts and the local school boards was a specious doctrine that the Supreme Court put solidly to rest when the same case came to them as Cooper v. Aaron:

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.

If the governor's move was called "interposition," what do you call it when a member of a state Supreme Court recommends against following federal Supreme Court precedent that he believes is wrongheaded?

In a capital case for which he was recused, having been involved in its prosecution before joining the court, Tom Parker of the Alabama Supreme Court claims that his fellow justices should have felt free to ignore Roper v. Simmons, the recent case that declared it unconstitutional to sentence a defendant under the age of 18 to death. Writes Parker in an amazing op-ed (via How Appealing),

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 that they use such ridiculous reasoning to try and force foreign legal fads on America. After all, this is the same Court that hs declared state displays of the Ten Commandments to be unconstitutional. [Parker is Roy Moore's stalwart defender; he introduced Moore recently at a conference called "Confronting the Judicial War on Faith."]

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.

He avoids the nasty little thing called "precedential authority" by raising the philosophical issue of whether the concept of "precedent" works at all:

State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case.

Maybe realizing that that doesn't quite do it, he continues,

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."

It would have been a well-calculated dodge, he predicted, for if the cards were to fall right, the Alabama court would have set in motion the very end of Roper itself:

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.

But isn't he count his eggs prematurely? Are Chief Justice Roberts and the presumed Justice Alito actually going to overturn Roper?

Maybe not, Parker concedes, while holding his point: "the Alabama Supreme Court would have been none the worse for standing up against judicial activism."

While it might seem unseemly for a sitting supreme court justice to lash out against his colleages in a newspaper column, we should note that he has made the same point from the bench. The first item on his web page is a concurrence in a recent case in which he expressly takes on the statement quoted above from Cooper v. Aaron. In short, he just thinks it's plain wrong.

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