Positive Liberty

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.

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