- The Washington Times - Thursday, June 1, 2006

BIRMINGHAM, Ala. (AP) — Four Republicans running for Alabama’s Supreme Court are making an argument legal scholars thought was settled in the 1800s: State courts are not bound by U.S. Supreme Court precedents.

The Constitution says federal law trumps state law, and legal analysts say there is general agreement that state courts must defer to the U.S. Supreme Court on matters of federal law.

Yet Justice Tom Parker, who is running for chief justice, argues that state judges should refuse to follow U.S. Supreme Court precedents they think are erroneous. Three other Republican candidates in Tuesday’s primary have made nearly identical arguments.

“State supreme court judges should not follow obviously wrong decisions simply because they are ‘precedents,’” Justice Parker wrote in a newspaper opinion piece in January that was prompted by a murder case that came before the Alabama high court.

Justice Parker is a former aide to Roy Moore, who became a hero to the religious right when he was ousted as Alabama’s chief justice in 2003 for refusing to obey a federal judge’s order to remove a Ten Commandments monument from the rotunda of the state courthouse.

Republican incumbent Drayton Nabers has rejected his opponent’s theory of federal-vs.-state authority as “bizarre” and warned it would “lead to chaos both in the nation and the state.”

Similarly, John Carroll, a former federal magistrate who is dean of the law school at Samford University in suburban Birmingham, called Justice Parker’s position “absolutely wrong and without any basis.”

“This view would create absolute anarchy. If this became the practice … we would not have any law,” Mr. Carroll said.

Justice Parker’s ideas may be appealing to Alabama voters, however. A poll in April showed him in a close race with Mr. Nabers, though 55 percent remained undecided.

Bashing the federal courts often has been a winning political strategy in the South.

During the 1950s and ‘60s, Southern politicians — Alabama Gov. George C. Wallace foremost among them — railed against federal court decisions striking down segregation in schools and public transportation. Segregationists asserted state sovereignty and state rights against what they called tyrannical interference from Washington.

More recently, Gov. Fob James threatened in 1997 to use the National Guard to protect Mr. Moore’s right to display a Ten Commandments plaque in his courtroom.

There are nine seats on Alabama’s Supreme Court, all held by Republicans, and five are up for election.

Alan Zeigler, a Birmingham lawyer running in the election, said lower courts should follow direct orders of the Supreme Court in specific cases. But he added that state justices have a duty to ignore precedent when the U.S. high court takes an unconstitutional position.

Another candidate, Henry P. “Hank” Fowler, a member of Justice Parker’s staff, said conservative judges must stop surrendering to liberal Supreme Court opinions “without a word of protest.”

For his part, Mr. Moore is running for governor against Republican incumbent Bob Riley, who has a big lead in the polls.

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