by Matt Barr

The supreme law of the land

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 the principle of judicial review in the United States, shouldn't be read to say that "constitutional interpretation is exclusively the responsibility of the judiciary." (Emphasis mine.) The op/ed expands on this and deals with how (and whether) state judges should be guided by Supreme Court precedent.

Parker writes of the case of Renaldo Adams, sentenced to death for the 1997 rape and murder of a pregnant woman. Parker helped prosecute him as an Assistant Attorney General before he joined the court. The Alabama court, minus Parker, who had to recuse himself, reversed the death penalty, citing the U.S. Supreme Court's recent Roper v. Simmons decision outlawing capital punishment for offenders who committed their crimes while under 18 (the holding of the case is often described by dishonest commentators as prohibiting the execution of minors).

Parker despairs that the Alabama court vacated the death sentence "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.

There's inflammatory material in the op/ed, including the above if you don't understand the background of the Roper case, so I want to segregate three things that are going on in Parker's piece.

1. Liberal judicial activism is a blight on our Republic. I don't want to de-emphasize this aspect of Parker's argument; if he didn't strongly believe this he wouldn't write at all. But I recognize that you either believe this or you don't, and no op/ed or blog post will change your mind either way, so I think acknowledging that's where he's coming from and setting it aside is best. Parker argues as follows:

After all, the liberals on the U.S. Supreme Court already look down on the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state. We Alabamians will never be able to sufficiently appease such establishment liberals, so we should stop trying and instead stand up for what we believe without apology.

Rather than agreeing or disagreeing with the factual assertion or suggestion for action above, let's note this part of the argument and move on to the precise grounds on which Parker argues the court should have ignored Roper. It has to do both with the procedural posture of Roper and a broader conception of judicial review.

2. The Supreme Court has endorsed ignoring its precendents to give activists another bite of the apple. As Parker correctly notes:

Roper itself was established as new U.S. Supreme Court "precedent" only because the Missouri Supreme Court refused to follow prior precedent. The U.S. Supreme Court used the appeal resulting from the Missouri decision to overturn its previous precedent and declined to rebuke the state court for disregarding the prior precedent.

A 15-year-old precedent overturned by Roper called the execution of convicts who committed their crimes while 16 or 17 constitutional. Missouri's Supreme Court in the Roper case did indeed decline to follow that that U.S. Supreme Court precedent, giving the Roper Justices occasion to overrule it. Before you assail Parker for advocating lawlessness, you have to understand this. At the very least, as Parker notes, the U.S. Supreme Court should have discouraged this practice by rebuking the Missouri court if it didn't like state courts declining to follow precedent.

These parts of the argument separated out, let's get to the interesting part.

3. The Supreme Law of the Land is the Constitution and laws, not Supreme Court opinions. This is counterintuitive, isn't it? After all, if it's the province and responsibility of the Supreme Court to say what the law is, if it says the Constitution requires something, then that's what the Constitution requires.

Except that this can't be true, at least with regard to state courts. What does Article VI of the Constitution say?

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Emphasis supplied. But where is the problem here? Suppose the United States arrested, convicted and imprisoned an Alabamian under a law which forbade criticizing the President or Congress. Suppose the Supreme Court upheld his conviction. Or, pick the most obviously unconstitutional scenario you can think of. Suppose the law we're talking about called criticizing the President treason, and it was an ex post facto law. The law is unconstitutional in at least three ways(*), but the Supreme Court goes along with it. Must the Alabama Supreme Court recognize that precedent?

Arguably -- intuitively, even -- state Supreme Court justices who take an oath to uphold the Constitution would be obligated not to recognize that precedent. Don't worry, you needn't agree with Parker's opinion on Roper yet. Hopefully, you're with me so far, though.

You may say: If the Supreme Court acted so unlawfully, the offending Justices could be impeached, or the Constitution could be amended, or the President could pardon the offender, or the law could be changed in Congress. Checks and balances exist in our constitutional framework itself to prevent this kind of abuse of power; no one need be a vigilante.

You're right, but the problem is that all these checks and balances require federal action. What happens if a state is aggrieved, and considers a federal law unconstitutional? What happens if that unconstitutional federal law is upheld by the U.S. Supreme Court? Are judges in Alabama bound by Article VI to recognize that opinion as the Supreme Law of the Land?

To avoid that unacceptable, if difficult to imagine, result you have to consider that Article VI says the Constitution, laws and treaties are supreme; not Supreme Court opinions. If the Supreme Court acts contrary to the Constitution, state judges are bound by the latter, not the former.

If the Supreme Court acts unconstitutionally and separation of powers checks and balances are not available to you as a means of correcting it, because you're a state, not the executive or legislative branches of the federal government, your state courts are not bound to recognize, follow or endorse that Supreme Court action.

So goes the argument. What counterarguments aren't considered or are rejected?

That invites chaos, you say, forgetting that Roper itself was decided because a state declined to follow Supreme Court precedent. You might sensibly argue that federalism (or, a "workable government," if you prefer) requires that one entity needs to be the arbiter of what the Constitution allows, requires and prohibits. You might even sensibly nominate the U.S. Supreme Court to be that entity. But when you do so you're making a policy argument, not relying on the Supremacy Clause or anything else in the Constitution. You're not even relying on Marbury v. Madison, which says that the Court's province and duty is to say what the law is. As Parker asks in the opinion linked in the first paragraph, is it the Court's exclusive province and duty?

In Cooper v. Aaron, you may say, Arkansas refused to implement and actively opposed the Brown v. Board of Education mandate. You either think Cooper was decided incorrectly, in which case you're a boob, or that even if it was decided correctly, the state cold have shrugged it off and gone on barring black kids from desegregated public schools.

I'm not so quick to trot Cooper out. Cooper involved actions by the Governor and legislature of the state. Where Article VI expressly tells us what judges in the state are to be bound by, it doesn't seem necessary to look for analogous situations elsewhere not governed by that explicit text. Further, Brown was decided based on the text of the Fourteenth Amendment's Equal Protection clause, which governs what a state may or may not do. Roper is an Eighth Amendment decision.

Incorporation! you cry. For the love of God, no, let's not argue about incorporation. The Fourteenth Amendment prohibits the state from denying its citizens equal protection; in Cooper, the state denied equal protection. If you think litigation under the Cruel and Unusual Punishments clause is of the exact same kind and character at the state level as the Fourteenth Amendment's Equal Protection Clause, we're not going to get very far, and we'll have to agree to disagree.

Or, put another way, do you suppose we fought a bloody civil war and enacted the Reconstruction Amendments to stop southern states from dehumanizing and suppressing African Americans or so that state penal systems could be federalized? I can see arguing that because states follow Roper, then obviously they should follow Brown, but I don't think the opposite argument is persuasive.

This whole thing seems to me like a bad knockoff of A Few Good Men.

KAFFEE: A moment ago said that you ordered the state to order the penal system not to execute Adams.

JESSEP: That's right.

KAFFEE: And the state was clear on what you wanted?

JESSEP: Crystal.

KAFFEE: Any chance the state ignored the order?

JESSEP: Ignored the order?

KAFFEE: Any chance they just forgot about it?

JESSEP: No.

KAFFEE: Any chance the state left your chambers and said, "The Supreme Court is wrong"?

JESSEP: No.

KAFFEE: When the state spoke to the prosecutors and ordered them not to execute Adams, any chance they ignored them?

JESSEP: Have you ever spent time in Constitutional Law department, son?

KAFFEE: No sir.

JESSEP: Ever wrote an article about the Ninth Amendment?

KAFFEE: No sir.

JESSEP: Ever tried to pass a law helping people be free, whether they like it or not?

KAFFEE: No sir.

JESSEP: We follow Supreme Court precedent, son. We follow Supreme Court precedent or people die. It's that simple. Are we clear?

KAFFEE: Yes sir.

JESSEP: Are we clear?

Crystal! And so we rise and sleep under the very blanket of freedom the Supreme Court provides, and then question the manner in which they provide it. Commentators -- like Positive Liberty, PrawfsBlawg and GreeneSpace -- would prefer we just said thank you, and went on our way. As we recall, though, Jessep turns out not to be as above the law as he thinks he is.

Snark aside, the upshot is that this is a more complex, and frankly interesting, scenario than commenters today or back when Parker published his opinion above seem to be willing to admit.

(*)Art. I, Sec. 9; Art. III, Sec. 3; Am. I

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