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Saturday, May 07, 2016

Roy Moore suspended, facing removal

The Judicial Inquiry Commission of Alabama has filed a Complaint against Chief Justice Roy Moore with the Alabama Court of the Judiciary, which will hold trial to determine whether Moore should be removed from the bench. Moore is suspended with pay while the proceedings play out.

The focus of the charges was Moore's administrative order of January 2016, ordering all probate judges in the state that they had a ministerial duty not to issue marriage licenses to same-sex couples pending resolution of the mandamus action in the Supreme Court. This order was contrary to the statewide defendant class injunction in Strawser, the Eleventh Circuit's effective affirmance of that injunction (the Court rejected a challenge to the injunction as being inconsistent with the SCoA mandamus ruling, insisting that the SCoA ruling was abrogated by Obergefell), and Obergefell itself.

I know nothing about judicial ethics, particularly in Alabama. But it seems to me the first charge--that Moore ordered the probate judges to ignore a federal court's injunction--is fair game (although the fact that the Eleventh Circuit had weighed in on the issue seems beside the point). The rest--that Moore decided substantive legal issues, including in ways that conflicted with his role deciding cases as a member of the Court--seem a bit shakier, at least to the extent they suggest an ethical conflict between the Chief Justice's role as administrative head of the state judiciary and as a member of the courts. The last five charges assume that SCOTUS's decision in Obergefell is the last constitutional word and a state judge, even one acting in an administrative capacity, cannot second-guess or disagree with that.

I welcome comments from this with a background in Alabama judicial ethics.

Posted by Howard Wasserman on May 7, 2016 at 04:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I'm not sure "separation of powers" or "federalism" has any more content as a principle, because they still require explanation, but fine. Both includes, I am arguing, other branches and branch officials possessing a coequal power of constitutional interpretation and construction, which is furthered by a model under which they can act consistent with their oaths and in contradiction to judicial understandings.

And this is not "judicial restraint" (to the extent that phrase has any meaning--I would argue it doesn't). What I am talking about is inherent in the nature of judicial decisionmaking--a judgment (which is the legally enforceable thing a court produces) in a case binds only the parties with respect to the parties and a discrete set of facts. The rest of the work is done by precedent (in the courts) and the persuasiveness of the reasons underlying the judgment (on non-judicial actors).

Joe, glad you can keep one another company. Not sure why anyone is surprised--I have been writing about SSM, particularly Alabama, in this way for more than a year.

Posted by: Howard Wasserman | May 14, 2016 7:34:57 AM

Anon appears to be a bit surprised and taken aback at the breadth of the professor's position. Not alone on that front.

Posted by: Joe | May 13, 2016 10:44:10 PM

Apologies for the half sentence at the end of the last comment - I was going to write more, but then realized it would probably be helpful to read more about your position in the work you mentioned above.

Posted by: Anon | May 13, 2016 5:34:06 PM

I don't mean to nitpick, but in fairness, to say that "nothing in the Constitution gives the judiciary the final word on constitutional meaning" is an argument, not a principle. Likewise for your cases and controversies statement. I think the most generously construed potentially corresponding principles might be things like "separation of powers" or"federalism" or "judicial restraint," but none of these principles are served in a situation in which the underlying issue of the ensuing litigation has already been settled by the highest court in the land. The values of separation of powers, federalism, and/or judicial restraint are not served by a redundant re-litigation of settled constitutional law. Is the work you describe above available on Westlaw or SSRN? I'm interested to read more.

Implicit in that power of judicial review is a corresponding obligation by the executive branch to enforce the law as it is articulated by the judiciary. injunctions in the absence of

Posted by: Anon | May 13, 2016 5:31:40 PM

I don't think we agree that Obergefell is the last word on the legality of same-sex marriage, outside of litigation. Certainly I don't.

And, yes, that is the view I am espousing (and have been espousing in a dozen or two blog posts in the past 15 month, in an article in Hastings CLLQ, and in a forthcoming project). Alabama law no longer prohibits Black students at the University of Alabama. If Alabama changed its law, the governor would be within his power and acting consistently with his oath to stand in the doorway. Yes, he will be enjoined. And he may well be on the hook for damages without the benefit of qualified immunity. And he certainly will pay attorney's fees. All of which may incentivize him to go along with the court. But that does not mean he has violated his oath or that his oath obligates him to do go along.

I would say there are two constitutional principles served: One is that nothing in the Constitution gives the judiciary the final word on constitutional meaning. And the other is that courts decide cases or controversies, which by definition involve discrete parties and discrete claims directed at and for the benefit of those parties.

Posted by: Howard Wasserman | May 13, 2016 5:03:48 PM

Here's the problem though: given that we agree that Obergefell is the last word on the legality of same-sex marriage in Alabama, there is no room for a discretionary interpretation that holds that same-sex marriage is not legal in Alabama. I can't think you are espousing the view that the law requires an injunction to be entered against each person who is involved in implementing Obergefell in every single jurisdiction. That strikes me as a staggeringly pointless waste of public resources. There is also no historical precedent for such a position. By that logic, the current president of the University of Alabama (who is currently not under court order to do otherwise) could stand in the school house door and order his subordinates to deny admission based on race, and that action would be completely lawful until someone sued and an injunction was entered against the president and the subordinates. The only point of insisting that judicial interpretations of the law are only binding on parties to litigation seems to be obstructionist. No constitutional value or principle is vindicated by adopting the perspective that a dissenting state official need not follow a clearly articulated constitutional norm until someone literally "makes" them. The only possible consequences of such an extraordinary stance are delay of the inevitable, unnecessary expense, and a further fracturing along political lines.

Additionally, it strikes me that the Supreme Court has already implicitly rejected the possibility of what you are describing by holding that when an executive official who acts contrary to a constitutional norm articulated by the judiciary, that executive official has violated the constitution (i.e. deprived someone of a clearly established right) in the context of Sec. 1983, even where that official was not a party to an injunction to do otherwise.

Posted by: Anon | May 13, 2016 4:31:46 PM

I should have been more precise--he is performing an executive function and, as such, has the same executive discretion that an executive-branch officer would have in performing the same function.

As to ordering his subordinates to violate the law, the premise of departmentalism is that the Court doesn't have the last word, outside of litigation, on what the law is. So, as I said in the OP, he is rightly on the hook for advising them to ignore the injunction. It is less clear to me w/r/t advising them to ignore Obergefell itself.

Posted by: Howard Wasserman | May 13, 2016 3:55:17 PM

So Roy Moore is a member of the judiciary branch, not the executive branch. The fact that his role requires administrative acts (i.e. supervising subordinates) does not transform his office into an executive office. He is not an executive official. Moreover, even if he were, an executive official can't order his subordinates to violate the law, which is what Roy Moore did.

Posted by: Anon | May 13, 2016 3:49:26 PM

With respect to the judiciary, it is. With respect to an executive officer, acting outside of litigation and not subject to an judgment, it's not--executive officials can proceed on their own constitutional understanding, at least until a judgment. This is something I have been writing about for the better part of a year.

Posted by: Howard Wasserman | May 13, 2016 3:12:48 PM

I think I may be confused by the last line of this post. Are you suggesting that the Supreme Court's decision is somehow not the last word, constitutionally-speaking, on the legality of same-sex marriage in Alabama?

Posted by: Anon | May 13, 2016 2:26:13 PM

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