- The Washington Times - Monday, June 5, 2006

Alabama Supreme Court Associate Justice Tom Parker, Republican, has summoned his judicial colleagues to resist “obviously wrong” decisions of the U.S. Supreme Court. Writing in the Birmingham News on Jan. 1, 2006, Justice Parker insisted the judicial oath requires lower court judges to ignore what they believe are errant Supreme Court precedents. Otherwise, he insinuates, constitutional law will come to resemble an ill-begotten petrified forest.

But Justice Parker’s insurrectionist remedy for Supreme Court errors would reduce the Constitution to a Tower of Babel. It would invite every tribunal to become a law unto itself. The high court can be prodded to overturn wrongly reasoned precedents without creating judicial anarchy.

Justice Parker’s radicalism was provoked by the Supreme Court’s flawed ruling in Roper v. Simmons that the Eight Amendment’s prohibition against cruel and unusual punishments forbade the death penalty for minors younger than 18. Writing for a 5-4 majority, Justice Anthony Kennedy asserted “evolving standards of decency” were the benchmark for determining the permissibility of punishments; that Supreme Court justices were uniquely capable of taking the moral pulse of the nation; and, that the punishment practices of foreign nations were informative of decency standards in the United States.

After Roper was decided, an indistinguishable case presented itself to the Alabama Supreme Court involving Renaldo Adams. He had been sentenced to death for a rape and murder perpetrated before age 18. The Alabama Supreme Court reversed the death sentence based on Roper. Justice Parker had assisted in the prosecution of Adams, and thus did not participate in the Alabama Supreme Court decision. But in the Birmingham News, he chastised his colleagues for faithfully applying rather than repudiating Roper. Justice Parker elaborated: “State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. … tate supreme court judges should not follow obviously wrong decisions simply because they are ‘precedents’… [A] judge takes an oath to support the Constitution — not to automatically follow activist judges who believe their own evolving standards of decency trump the text of the Constitution.”

Justice Parker’s premise that court decisions do not bind nonparties is correct. President Abraham Lincoln, for example, maintained he would accept the odious Dred Scott precedent that blacks were not citizens as binding on the litigants but not as a rule for his executive branch, which would seek to confine or obtain an overruling of the case. President Thomas Jefferson pardoned persons convicted under the Sedition Act of 1798 because he disputed federal court rulings denying First Amendment challenges to the law. And President Andrew Jackson thwarted renewing the charter of the Second Bank of the United States because he disagreed with the Supreme Court’s decision in McCulloch v. Maryland sustaining its constitutionality.

The rule of law, however, requires subordinate state and federal judges to apply Supreme Court precedents faithfully unless and until they are overruled. Each judge takes an oath to support the Constitution of the United States. And as Chief Justice Charles Evans Hughes observed, the Constitution is what the Supreme Court says it means. That enormous power is conferred not because the high court is infallible, but because any other rule would be anarchical. Justice Parker’s exhortation is exemplary.

He argues state supreme courts should ignore “bad” or “obviously wrong” U.S. Supreme Court decisions because their judicial oaths require their adherence to the Constitution. Thousands of federal and state judges, however, take an identical oath. By Justice Parker’s reasoning, they too should refuse to follow any Supreme Court decision with which they disagree. The Constitution is clueless as to the earmarks of bad or obviously wrong Supreme Court opinions. Thus, every judge would be authorized to prepare idiosyncratic lists identifying which precedents would be followed and which would be disregarded.

Cases might daily shift from one list to the other. On Monday, a judge might list Brown v. Board of Education as a binding precedent prohibiting officially sponsored segregation in public schools. On Tuesday, the judge might list the desegregation precedent as nonoperative. Under Justice Parker’s theory of judging, the Constitution would carry a different and inconstant meaning in every courtroom. Private and government planning pivoting on what the law permits or requires would be confounded. Rights and obligations would turn on the luck of the judicial draw. Equal justice would be mocked.

Contrary to Justice Parker, judicial insurrection is not required for the Supreme Court’s reconsideration of ill-reasoned precedents. In the Adams case itself, the Alabama attorney general could have sought review of the Alabama Supreme Court’s decree in the U.S. Supreme Court and asked it to overrule Roper. Indeed, the high court has overruled hundreds of precedents in that fashion. Wrongly decided Supreme Court decisions should and can be challenged without vivisecting the rule of law. Justice Parker’s theory of law seems more revolutionary than conservative.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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