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Tuesday, January 03, 2006

Apparently, the Supremacy Clause Doesn't Apply in Alabama

Over at How Appealing, the ever-reliable Howard Bashman links to a terribly disturbing op-ed by Alabama Supreme Court Justice Tom Parker apparently published over the weekend, and arguing, I kid you not, that his brethren on the Alabama Supreme Court grievously erred by following (not refusing to follow) the U.S. Supreme Court's 2005 decision in Roper v. Simmons, holding that the execution of anyone under the age of 18 is unconstitutional.

I'm really not making this up. Leaving aside how inappropriate I think it is for a sitting judge to write an op-ed excoriating his colleagues, even on a case where he was recused, the substance of the op-ed hearkens back to John Calhoun and the nullification debates. Here's Justice Parker, in his own words:

[M]y 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.

Justice Parker doesn't try to distinguish Simmons; he just argues it was wrong -- the product of the "liberals" on the Supreme Court, and who needs to follow them? It gets better slightly later in the piece:

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."

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.

Update: I can't find a public copy of Ex parte Adams, the decision that so angered Justice Parker. For those with Westlaw access, the Westlaw cite is 2005 WL 3506662 (Ala. Dec. 23, 2005). In relevant part, here it is:

SMITH, Justice.

. . . . Adams was convicted and sentenced to death for murdering Melissa Mills during the course of a robbery, rape, and burglary. On appeal, the Court of Criminal Appeals affirmed Adams's conviction and his sentence of death.

In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), decided after the Court of Criminal Appeals issued its decision in this case, the United States Supreme Court held that it was unconstitutional to execute an offender who was under the age of 18 when he or she committed the offense. The opinion of the Court of Criminal Appeals states that Adams was 17 years old at the time of the offense. Nothing filed in this Court disputes that fact. Thus, it would appear that the United States Supreme Court's decision in Roper applies to Adams's sentence; therefore, we reverse the judgment of the Court of Criminal Appeals as to Adams's sentence and remand the cause for a determination of the impact of Roper on Adams's sentence. As to all other issues raised in Adams's petition, certiorari review is denied. WRIT GRANTED IN PART AND DENIED IN PART; REVERSED AND REMANDED.

Update 2: Over at Sentencing Law & Policy, Doug Berman adds some intriguing comments of his own, including Justice Parker's inability to count heads.

Posted by Steve Vladeck on January 3, 2006 at 03:21 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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» Alabama Supreme Court Justice Tears Into His Colleages from ACSBlog: The Blog of the American Constitution Society
PrawfsBlawg reports that Alabama Supreme Court Justice Tom Parker has essentially urged his colleagues to nullify the 8th Amendment's prohibition against "cruel and unusual punishment" as interpreted in Roper:Over at How Appealing, the ever-reliable Ho... [Read More]

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» Alabama Supreme Court Justice Tears Into His Colleages from ACSBlog: The Blog of the American Constitution Society
Professor Steve Vladeck reports that Alabama Supreme Court Justice Tom Parker has essentially urged his colleagues to nullify the 8th Amendment's prohibition against "cruel and unusual punishment" as interpreted in Roper:Over at How Appealing, the ever... [Read More]

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» Alabama Supreme Court Justice Urges Ignoring SCOTUS Precedent from ACSBlog: The Blog of the American Constitution Society
Professor Steve Vladeck reports that Alabama Supreme Court Justice Tom Parker has essentially urged his colleagues to nullify the 8th Amendment's prohibition against "cruel and unusual punishment" as interpreted in Roper:Over at How Appealing, the ever... [Read More]

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» Alabama Justice declares independence from Supreme Court from Appellate Law
Most of the Appellate-Related Blogs are linking to this op-ed by Justice Tom Parker of the Supreme Court of Alabama, in excoriates his colleagues on the courts, and states that the Alabama Supreme Court should not follow precedents of [Read More]

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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... [Read More]

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» The supreme law of the land from New World Man - where's my thing?
Justice Tom Parker of the Alabama Supreme Court wrote an op/ed in the Birmingham News this week. We last encountered Justice Parker here when he wrote an opinion arguing that Marbury v. Madison, the seminal Supreme Court case ostensibly establishing th... [Read More]

Tracked on Jan 6, 2006 1:40:59 PM

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Actually, Steve, I'm going to respectfully disagree with you here. Pernicious as Justice Parker's Op-Ed might be, there's nothing in Article VI, or in Marbury, or even in the hyperbole of Cooper v. Aaron, that requires state supreme court judges "to follow the federal Supreme Court's reading of the federal Constitution."

The reason state supreme court judges should follow SCOTUS precedent is actually the very reason that Justice Parker identifies: that if a case indistinguishable from the precedential case "goes before the Supreme Court again," it will almost certainly result in the same judgment as in the precedential case. *Because* state court judgments based on federal law are subject to review by the SCOTUS, per Martin v. Hunter's Lessee, and because the SCOTUS itself does not ordinarily reverse itself, it simply makes no sense -- and is terribly unfair -- for the state court to resist the precedent, a tactic that only wastes the time and money of the parties and the SCOTUS.

Nonsensical and unfair, yes -- but unconstitutional? Perhaps -- but only because imposing such unfairness on the party who should prevail might arbitrarily deprive that party of property or liberty during the time it would take to appeal to the SCOTUS, which might in turn be a denial of due process.

Posted by: Marty Lederman | Jan 3, 2006 6:24:28 PM

Marty is perfectly correct. Of course, that doesn't speak to the absurdity of criticizing your colleagues on the bench (having first recused yourself, no less).

Posted by: anon | Jan 3, 2006 6:36:09 PM

Marty -- I take your point, but does that really leave state court judges free to ignore the U.S. Supreme Court, for the sole reason that the Court could always reverse on certiorari? Put another way, I had always thought there was something more than just the procedural safeguard provided by Martin that commanded obedience to the federal Supreme Court in state courts, and that Cooper, its hyperbole notwithstanding, stood for that...

I guess I'm just deeply uncomfortable with state judges who don't think they're bound to follow the Supreme Court. After all, wouldn't those same state judges be miffed by federal judges who decline to follow their interpretation of their own state law?

Posted by: Steve Vladeck | Jan 3, 2006 6:37:21 PM

Actually, the Roper decision encourages state activism of the kind Justice Parker desires. In Roper, the federal Supreme Court permitted a state Supreme Court to flout well-established federal law, i.e., the United States Constitution is not violated when a state executes a person of a certain age at the time of his death-eligible offense.

The state Supreme Court said "Fie!" to that well-established federal law -- and the federal Supreme Court let them do it. The Alabma Supreme Court had the same opportunity, and chose not to do so. I am not saying that Roper requires state supreme courts to ignore well-established federal law, just that (if one takes Roper seriously) we no longer live by the rule of law but by the rule of caprice.

Posted by: unconfirmable | Jan 3, 2006 7:39:16 PM

If my memory serves me, Justice Scalia, in his dissent, berated the majority for allowing the Missouri Supreme Court to disregard the U.S. Supreme Court's decision of only fifteen years earlier on the same issue. Steve Vladeck is exactly right. State judges are the third branch of government in their respective states by virtue of stare decisis, especially in the areas of tort law and contract law. If the supremacy clause means anything they are bound to defer to decisions of the U.S. Supreme Court. The death penalty is a special case in the U.S. Supreme Court. It is the only criminal penalty subject to the test of proportionality. As far as I can see, it is given the same scrutiny as claims of a priori First Amendment infringements. Wasn't there a Chief Justice from Alabama who was removed for disobeying a Federal Court order in a First Amendment case?

Posted by: nk | Jan 3, 2006 7:52:09 PM

I'm not so sure how state court judges would feel about the Supreme Court going its own way on matters of state law...maybe they'd be "miffed" but more likely, on matters of interpretation of some obscure contract or some other nuance of their state's version of the collateral source rule, they might just not care a whit, particularly since the Supreme Court rarely concerns itself with state law (or anything else, given the number of cases on its docket).

No, I think this is more of an issue for the sensibilities of those who cotton to federal caselaw, and the mores that the Supreme Court wishes to universalize by fiat. What do you expect? Continued obeisance to the great sages, notwithstanding the indisputably controversial nature of the conclusions they come to? The time when people (and now, even judges) genuflected before the Supreme Court just because they are "Supreme" is over. It has gone the way of respect for the professions and prayer before bedtime. Now everybody's opinion counts just as much as everyone else's. Who are you, just because you're smart and accomplished and learned and wise, to tell me what I should do. I read, too, you know!

Posted by: md | Jan 3, 2006 7:59:47 PM

When I read that letter, I was shocked a sitting Justice of a state court of last resort would write something like that. Now, perhaps it has to do with state judicial branches. Perhaps we are looking at a state that elects its court of last resort. I don't know about Alabama off the top of my head, but when your judicial decisions are subject to the review of the public by means of election, it can't hurt to politically shore up your base. Besides, attacking "activist" judges is such fun, these days. It is almost as if any judicial opinion you do not agree with gets to be activist when we look at the grand scheme of things.

As for the deep seated constitutional issues here, supremacy clause and move along home. Yes, a non-party to the SCOTUS case must follow the precedent the same way a nonparty to a state civil case will be bound by a new law. The idea that the Supreme Court of the United States does not make pronouncements about the state of federal law for the United States is counterintuitive at best and shockingly demogougic at worst.

Ahh ... I've missed this site.

Posted by: Joel | Jan 3, 2006 8:14:12 PM

Apart from Judge Parker's erroneous constitutional interpretations, there's also some problems with his characterizations of the justices involved in Roper.

First, it's not clear how Justice Kennedy qualifies as "liberal," unless "liberal" means "anyone with whom I, a justice of a Southern state's supreme court, disagree."

Second, he would have liked the case to be reviewed by a U.S. Supreme Court with "two new members." But the justices who will be replaced (Chief Justice Rehnquist and Justice O'Connor) were in the minority in Roper. So there's virtually no chance the turnover on the Court would have any impact on Roper's central holding--that the State may not constitutionally kill people who commit crimes before they attain the age of majority.

Posted by: Donald | Jan 3, 2006 8:17:04 PM

Disaffected would be trackback:

True Activism from "The Debate Link".

Great post!

Posted by: David Schraub | Jan 3, 2006 9:13:27 PM

I just want to add one point, piggybacking on nk's comment:

The Eighth Amendment is a little different, because it's long been understood that what makes punishment "cruel and unusual" is measured as against the evolving standards of decency prevailing in society. So, I actually don't have a problem with the Missouri Supreme Court's decision in Simmons -- they applied the same test followed in Stanford v. Kentucky, concluding only that things had changed in the 16 years since that decision...

By that same token, what Justice Parker is advocating for is far different; his point is that, in general, state supreme courts are free to disagree with the U.S. Supreme Court's interpretation of the federal constitution. That's not at all what the Missouri Supreme Court did in Simmons, nor is it something that should sit well with people of every ideological persuasion. After all, are the Vermont and Oregon Supreme Courts free to ignore more "conservative" rulings by the U.S. Supreme Court?

Posted by: Steve Vladeck | Jan 3, 2006 9:55:16 PM

I see that Marty's already hit this, but I have a response on Crescat, arguing that while federal laws, treaties, and the federal constitution are indeed the Supreme Law of the Land, the contents of the U.S. Reports are not: http://www.crescatsententia.org/archives/2006_01_03.html#006259

Posted by: Will Baude | Jan 4, 2006 12:23:36 AM

Link is here.

Posted by: Will Baude | Jan 4, 2006 12:25:24 AM

I already responded to Will on Crescat, but thought I'd post my response here as well:

Will -- Well, outrage, anyway; maybe not shock.

I like your take on it, which is far more sophisticated than mine (the danger of writing right when you find out about something). But I take issue with one point:

We can all agree, I imagine, that the Supremacy Clause means state courts have to enforce the federal Constitution. The question is, who gets to say what the Constitution says? This is Marbury's importance -- Marshall says "we do." Now, granted, it's the Supreme Court saying that it gets to be Supreme, and there's an odd recursion issue there (esp. if you think the Supreme Court doesn't get to have that role), but it's become a pretty ingrained part of our constitutional tradition, no?

Posted by: Steve Vladeck | Jan 4, 2006 12:31:23 AM

I don't see the problem. Oh right, the National Guard are away in Iraq.

Posted by: MT | Jan 4, 2006 3:18:41 AM

I don't think any of you have addressed the ramification head on. At the point at which Roper was decided, I assume it was correctly decided -- prevailing standards of decency at that point prevented executing minors. But times have changed. Roper was decided months ago. It is possible that with that lapse of time the prevailing standards of decency now permit what they once forbade. Just as (if one accepts Roper) the Mo. Supreme Court was free to decide they had changed in one direction, so too the Alabama Supreme Court was free to decide they changed in the other.

The alternative -- that the evolving standards of decency work like a ratchet and not a pendulum -- is one that I wish lefties would openly embrace. Because it embraces a laughable picture of morals and law that would not stand in daylight.

Posted by: unconfirmable | Jan 4, 2006 11:10:38 AM

One aspect of Justice Parker's commentary that many seem to have missed is his main concern with Roper appears to be the reliance on foreign law. It's not a matter of deference to the U.S. Supreme Court's preferred interpretation of a portion of the U.S. Constitution -- if that were all, I think Justice Parker would defer. But that's not what happened in Roper, in which the justices chose to rely on foreign law, including a United Nations treaty that the United States has refused to ratify, as grounds for their ruling.

It seems to me that Justice Parker found such a ruling to be clearly extrajurisdictional and, because his judicial oath is to the United States Constitution and not the United Nations or to the U.S. Supreme Court, he believed it was his duty to actively resist such an unlawful ruling.

For Justice Parker to be in the wrong, it would seem to me, one must show how the judicial oath of office requires submission to these other authorities rather than the constitution itself.

Posted by: Southern Lawyer | Jan 4, 2006 11:11:25 AM

By the way, Justice Parker has written an opinion against judicial supremacy. It can be found here: http://www.parkerforjustice.com/images/Parker_opinion_against_judicial_supremacy.pdf

The opinion is well-written and strongly argued -- but not too long, so it's worth taking the time to read it for purposes of this discussion.

Posted by: Southern Lawyer | Jan 4, 2006 11:22:01 AM

Starting with Southern Lawyer: The foreign law issue is a red herring. The non-US law cited was cited as evidence of the current standards of decency that added to -- not determined -- the court's conclusion.

Re Judge Parker's piece: As much as I disagree with his willingness to simply ignore U.S. Supreme Court decisions general position of judicial nullification, he does point out the fragile basis of judicial authority, and we liberals ignore it at our peril. This is especially true when the rule of decision is one of subjective judgment -- substantive due process, evolved standards of decency, shocked the consciences -- that legislators are presumably as capable of determining as judges are.

When high courts decide that the "constitution" prohibits, for example, the execution of juveniles, the legitimacy of that decision must rest on the prestige of the court and the power of its persuasion since there's little if anything in the text that would lead a citizen -- or a legislator -- to that conclusion. So if the Court is going to make such pronouncements -- as I agree it must on occasion, especially when the underlying rule is inherently subjective, such as "cruel and unusual" -- it should be extra-cautions and super-persuasive. If it isn't, then the Court's legitimacy has to be based on the we're-infallible-because-we're-final principle of Robert Jackson, a practical necessity that may result in obedience but not and respect.

I would almost say that when the Court decides that a statute violates substantive due process or any of the other standards that brings extra-legal judgment in to the equation, it should be a super-majority at least (6-3? 7-2?) if not unanimous. When such decisions are made by a one-vote margin, it only addes fuel to the fire Justice Parker is stoking. (I don't think Brown v Board of Education would have ultimately earned its place in the pantheon of good judicial lawmaking if Earl Warren had not twisted the arms necessary to make it unanimous.)

As outrageous as Parker's article is insofar as it counsels disobedience, I think his underlying point that the Court's decision lacks moral authority it has an honorable pedigree. Abraham Licoln said on June 26, 1857:

And now as to the Dred Scott decision. That decision declares two propositions—first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court—dividing differently on the different points. . . .

Judicial decisions have two uses — first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called "precedents" and "authorities."

We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country—But Judge Douglas considers this view awful.

Posted by: Paul Landskroener | Jan 4, 2006 1:10:54 PM

Southern Lawyer -- Why do conservatives always read the word "treaties" out of the Supremacy Clause??

Posted by: John Marshall Doe | Jan 4, 2006 1:23:10 PM

JMD, A treaty is not part of the law of the land subject to any U.S. Supreme Court interpretation unless it is ratified by the Senate, which did not occur for the U.N. treaty invoked by the five justices in the majority in Roper. One of the paragraphs in Justice Parker's opinion not excerpted above addresses your question:

"Ironically, one of the UN treaties invoked by the U.S. Supreme Court as a basis for its Roper decision is a treaty the United States has refused to sign. By insisting that American states submit to this unratified treaty, the liberals on the U.S. Supreme Court not only unconstitutionally invalidated laws in 20 states but, to do so, also usurped the treaty-making authority of both the President and the U.S. Senate."

Posted by: Southern Lawyer | Jan 4, 2006 1:38:29 PM

My point is not specific to Roper. Instead, my point is more general -- your worldview seems to be that international law has no bearing on domestic law, when, clearly, it does. A ratified treaty clearly does trump contrary state law.

And in any event, why isn't a practice "unusual" if we're one of the only countries in the world that countenance it?

Finally, as a total aside, it's been pointed out here and elsewhere that the decision in Roper did not turn on any international law; that Justice Kennedy mentioned it to bolster the conclusion already compelled by domestic law (following from Atkins).

Posted by: John Marshall Doe | Jan 4, 2006 1:44:39 PM

Trackback:

Kierkegaard Lives: Alabama Justice Declares Independence from U.S. Supreme Court.

Posted by: Kierkegaard Lives | Jan 4, 2006 6:50:40 PM

The problems with running down the actual use of foreign citations in SCOTUS cases is that we get into a question of policy preference. There should be no doubt that a ratified treaty trumps any State law to the contrary. When dealing with Roper, we see a lot of spin being put on how much international law impacted the outcome. I saw it as dicta that was used to bolster the policy portion of the decision, but not the controlling reason the court reached its holding. From a legal standpoint, outside the realm of politics, the questions of persuasive, non-binding sources happen in every court. What state do you look to for persuasive authority when you are in New York without a case on point? California? Arkansas? Florida? Each system will be attuned in a different way to different courts geographically proximate but when SCOTUS starts to look for persuasive, analogous authority we run into our current problem.

We can't ignore foreign jurisdiction's decisions. We live in teh same world they do. We have enough connected interests, commerce, and travel that we must be mindful of what other nations are doing. We are not required to follow it as a rule of law. We are required to follow a SCOTUS opinion as such and there are no facially invalid SCOTUS opinions. That is what I keep returning to in my head, and why my posts are not as precise as they once were - the thinly-veiled conceit for a differing opinion that reached a majority. You don't have to like it politically, but as a lawyer, especially if you are a judge or justice, the entire concept of the rule of law stays in place through the entire system of government. I'm beginning to get too off topic. Time for more coffee.

Posted by: Joel | Jan 4, 2006 6:50:43 PM

Southern Lawyer, what exactly do you mean by "extrajurisdictional"? Further, even the most strident critics of "citation of foreign law" (eg, Al Gonzales), when you read through the hysterics, don't make the claim that Roper itself "relies" in any meaningful way on foreign law. It doesn't. It's dicta, though (some say) it provides useful information. In the history of Supreme Court jurisprudence, I cannot (and I would be interested to know if you can) think of a single example of the Court *relying* on foreign law as binding precedent (except for examples everyone agrees are permissible, construal of some country's jurisdictional statutes or some such). The "foreign law" bit is, as one commenter has already added, a red herring - an awfully silly straw man.

Posted by: anon | Jan 4, 2006 10:33:41 PM

[Y]our worldview seems to be that international law has no bearing on domestic law, when, clearly, it does. A ratified treaty clearly does trump contrary state law.Yes, a ratified treaty does. A ratified treaty. But the treaty cited in Roper (that it did not control the decision has no bearing on its propriety or lack thereof) was not ratified by the United States per Art. III 2.

Posted by: Simon | Jan 5, 2006 10:50:39 AM

Joel-
We can't ignore foreign jurisdictions decisions.If "we" are Judges rather than legislators, then "we" not only can, but we must. The points you raise all have obvious answers that do not involve turning to international sources, not least because not once is the vitally important, critical, unavoidable question answered: why is it that foreign law would be relevant to the task of interpreting American law? What is it that one expects to find in those tea leaves? The original understanding? The contemporary standards of decency of America? Or, less glamorous but perhaps more honestly - something that sounds lawyerly and agrees with you?

In any instance, my views on this matter have not changed since we last exchanged words on the subject here. I would only expand those comments with additional notes I put in a letter to the Guardian, objecting to its characterization of opponents of using foreign materials as isolationists:

[T]he implied opprobrium in this text on the unwillingness of most American Judges to allow international law to bleed into constitutional interpretation, is predicated on the assumption that the use of foreign materials is relevant to the task of an American Judge. This predicate is highly dubious.

There are two great schools of thought regarding the American constitution and how it should be interpreted. One, subscribed to on the Supreme Court currently by Justices Scalia and Thomas, holds that in order for a constitution that is ratified by the people, and by its own terms can only be amended by their elected representatives (which Judges are not, and should not be), must be given a fair reading in light of what the document says, and what that text meant when it was adopted.

The other, "the living constitution", subscribed to by most of the other Justices, holds that in order for the constitution to remain meaningful to society, its provisions must be interpreted in light of "the evolving standards of decency of American society", meaning in effect that the Constitution has no fixed meaning, and that Chief Justice Marshall was wrong when he wrote in Marbury v. Madison that "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written", and correct when he added that "[t]he distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed."

In the interests of full disclosure, I am a subscriber to the former theory. But what's important is that, within either paradigm, it is hard to see what value foreign precedent might be. If you're an originalist, you're looking for what a statute or the constitution meant when they were adopted. Obviously, if you have that theory, subsequent foreign legal precedent is irrelevant, because it can't change the meaning of the text. But, even if you buy into the other school of thought, even if you're a living constitutionalist, what relevance would foreign law have to your view of your task? If you're looking to give the text the best meaning it could have, in light of the contemporary standards of decency in American society, what are you looking for? The standards of decency of AMERICAN society. What does looking to foreign court decisions tell you about the contemporary standards of decency in American society? Nothing.

So if you're an originalist, foreign law is irrelevant. If you're an honest living constitutionalist, foreign law is irrelevant. The only way it's useful, the only context in which it's relevant, is if you have a third approach to interpreting the law. And that approach, I fear, is exactly what the living constitution tends to be in practise: judicial paternalism. It is the approach that calls on a Judge to determine, "what is the best answer to this case? What do I think is the fairest outcome in this case? What is the best for society? And how can I remove the legal and precedential barriers to the imposition of that outcome?" Having asked those questions, the paternalist needs to write an opinion that looks like the product of a judge; and thus, they turn to doctrines like substantive due process, and increasingly, they turn to foreign law. They are, in the words of Clinton administration Solicitor-General Seth Waxman, "attracted by any notion, or principle, the logic of which carries us to a result we think is just."

And so it is. In the context of the modern court - and it is clearly on display in Roper v. Simmons and Lawrence v. Texas, for example - foreign sources are cited selectively to support the result desired by the author (in both examples above, Justice Kennedy; although Justices Breyer and Ginsburg most often fall back on foreign sources). In Printz, for example, Justice Breyer cited the example of Switzerland to show how Switzerland had approached the Federal system. This might be very valid if he was writing for a Swiss court, but America is not Switzerland! Maybe their system is better, I don't know - but the point is, their system isn't ours! Justice Breyer claims that "we might learn something" if we look at foreign precedent. That's true, as far as it goes; we might also learn something from taking a class in automobile engine maintenance, a PBS special on the chemical composition of Jupiter, a class in foreign & comparative law, or an hour watching Music TeleVision (strapped, presumably into a contraption similar to that used in A Clockwork Orange), but while these endeavors might all be very enlightening on some level, I would find discussion of those subjects somewhat out of place in a judicial opinion on the meaning of the constitution of the United States. "Interesting" is no more the criterion for "relevant" than "people feel passionately about this" is the criterion for "is this constitutional?"

The Constitution has a mechanism for changing its meaning; it is located in Article V, and it does not include the passing of laws by the legislature, or the precedents of courts American or otherwise. The Constitution also has a mechanism for importing foreign law into American law: the treaty process. Neither of these are to be found within the power of the federal courts; not only is the use of foreign materials irrelevant, but it is also borderline unconstitutional.

For a Judge in a common law jurisdiction, this might be a good idea; but in a system governed by a written instrument, it is indefensible. It is easy, to the point of lazy, to casually opine that the American legal system is insular. But what is missing, and what cannot be missing for the argument to be rescued from the depths of meaningless rhetoric, is a coherent explanation as to why foreign precedent should be of any relevance to the U.S. system.

Of course "[w]e have enough connected interests, commerce, and travel that we must be mindful of what other nations are doing;" and those people who make our laws may indeed do well to see how similar countries with similar traditions and cultures (although if you can find a country that fits that decription, I'm buying the drinks) have addressed similar problems. But I don't believe that Judges should make the law - apropos, the first clause of the first section of the first article of the United States Constitution (which does not include a footnote about additional authority for the Supreme Court) and the amendment process (which also, curiously, does not mention the Supreme Court).

Posted by: Simon | Jan 5, 2006 11:08:52 AM

I understand that the discussion has moved onto the deeper and more troubling question of the use of foreign law, but I have a comment on Justice Parker's position on the state supreme court's authority. It seems to me that the position of a state supreme court vis-a-vis the federal constitution has traditionally been thought to be roughly equivalent to that of a Circuit Court, i.e. the state supreme court must accept the interpretation of the federal constitution propounded by the U.S. Supreme Court.

I am not as well versed in the interaction of the federal courts as everyone on this string, but what is the authority for the idea that a Circuit Court or even a District Court must follow the dictates of the U.S. Supreme Court? Is that a statutory claim, or a constitutional one, or something founded in the prudential concerns that Marty Lederman discusses in the early comment following this posting? Article III refers to the (later-created) Circuit Courts and District Courts as "inferior". Is that, in itself, the only basis for the practice of the "lower" courts following the Supreme Court? Assuming that it is, that makes the question a constitutional one, not a product of statute and only influenced by prudential concerns rather than governed by them. Indeed, by the expressio unis logic, the statement that the other federal courts are inferior might even suggest that the state courts or not.

I see at least two (admittedly related) constitutional reasons to believe that the Supreme Court must be superior to the state courts on matters of interpreting the federal constitution. The first is the text of Article VI; there is no question under Article VI that "the Judges in every state" are bound by the Constitution. If this means only that they are bound by their personal beliefs as to what the constitution means, or (more accurately) by whatever strained interpretation they wish to put on it, the phrase is rendered meaningless. If Justice Parker's position is correct, then there is no real binding authority on the states' Supreme Courts coming from the federal Constitution besides that which they choose to accept for their own reasons. This does not seem, to me at least, to be a workable understanding of the Constitution, even from an originalist perspective.

The second, related point is that this interpretation would render the concept of a single, supreme law of the land oxymoronic, since there would be no such beast. In one area, the Constitution would mean one thing, in another, another. This would not only render any number of Supreme Court decisions nonsensical, it would leave the U.S. government extremely vulnerable to the whims of the states interpretations of the many phrases the Founders/Framers chose precisely for their flexibility (i.e. "cruel and unusual punishment", "due process", "respecting an establishment of religion"), etc. It also would, de facto, nullify the privileges and immunities clause (which could be interpreted by a state not to extend to another state's decision, license, etc.), the interstate commerce clause, etc., since states could simply rule that the particular item they are taxing or licensing (or refusing to license) is not covered by those clauses. Sure, this gets a little ridiculous at the margins, but on tougher questions, especially those the Founders/Framers left vague, it's a very real concern.

For similar reasons, the constitution grants federal courtsjurisdiction over cases brought federal laws, and we (by statute) allow removal of federal questions from state court. The Constitution, and with good reason, does not trust the states to interpret federal law. Instead, it empanels a Court and very carefully separates it from public influence. The conclusion I draw from the foregoing structural trends and textual provisions is that the Supreme Court was and is intended to be the final arbiter of constitutional disputes. Justice Parker's position would either expressly or implicitly eliminate this role, and so I think it is untenable.

Posted by: Paul | Jan 6, 2006 2:15:43 PM

"If this means only that they are bound by their personal beliefs as to what the constitution means, or (more accurately) by whatever strained interpretation they wish to put on it, the phrase is rendered meaningless."

Is it really? What if they were bound by their own good faith determinations of the contents of the constitution? (just as Supreme Court Justices are) and perhaps subject to direct overruling by the Supreme Court in individual cases where expressly provided by statute (like the judiciary act).

Whatever the failings of this account-- and there are plenty-- it does seem pretty plausible as an originalist matter. There was certainly no well-settled view at the time of the adoption of the Supremacy Clause about the nullification and interposition doctrines. That wasn't really settled until Webster and Clay fought it out on different turf.

Posted by: Will Baude | Jan 6, 2006 10:39:37 PM

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.

Posted by: B | Jan 12, 2006 6:35:52 PM

My conclusions on this issue can be found here (pdf warning). Justice Scalia noted, dissenting in Bousley v. United States, that "[n]o criminal-law system can function without rules of procedure conjoined with a rule of finality," 523 U.S. 614, 629, and I think that it is fair to restate that formulation more generally, that the rule of law itself cannot function without rules of procedure conjoined with a rule of finality. While I agree with Justice Parker that an officer sworn to uphold the Constitution will by necessity sometimes be placed in a situation where he must interpret the expanse of his own power and obligations, he does so only in the absence of a judicial command to the contrary. Someone must have the final say, and even if that call is wrong, it is inescapably the incumbency and prerogative of the Supreme Court to do precisely that. While I share Justice Parker's antipathy to Roper, and heartily commend his advocation of resistance to the decision, it is for litigants to resist, not lower courts.

Posted by: Simon | Jan 12, 2006 8:24:30 PM

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.I entirely agree with this. However, I would additionally point out that Alabama elects its Judges, and this op/ed - playing to the gallery being par for the course for an elected official - presents yet another compelling reason why judges should not be elected, but rather, be appointed by some other means.

Posted by: Simon | Jan 12, 2006 8:28:14 PM

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