In a debate with powerful echoes of the turbulent civil rights era, four Republicans running for Alabama’s Supreme Court are making an argument legal scholars thought was settled in the 1800s: that state courts are not bound by U.S. Supreme Court precedents.
The Constitution says federal law trumps state laws, and legal experts 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 believe to be erroneous. Three other GOP 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,”’ Parker wrote in a newspaper opinion piece in January that was prompted by a murder case that came before the Alabama high court.
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.
Warnings of ‘absolute anarchy’
Parker’s opponent, GOP incumbent Drayton Nabers, has rejected Parker’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 now dean of the law school at Samford University in suburban Birmingham, called 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,” Carroll said.
Parker’s ideas may be appealing to Alabama voters, however. A poll in April showed him in a close race with Nabers, though 55 percent were still undecided.
States’ rights: A strategy that’s worked
Bashing the federal courts has often been a winning political strategy in the South.
During the 1950s and ’60s, Southern politicians — Alabama Gov. George Wallace foremost among them — railed against federal court decisions striking down segregation in schools and public transportation. Segregationists asserted state sovereignty and states’ rights against what they decried as tyrannical interference from Washington.
More recently, then-Gov. Fob James threatened in 1997 to call out the National Guard to protect Moore’s right to display a Ten Commandments plaque in his courtroom.
There are nine seats on Alabama’s Supreme Court, all now held by Republicans, and five are up for election.
The issue of the role of the U.S. Supreme Court has been boiling ever since Parker wrote the newspaper opinion piece criticizing his fellow justices in a murder case for following a decision by the high court that barred the execution of juvenile killers. Parker called the federal decision “blatant judicial tyranny.”
“State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case,” he wrote.
Alan Zeigler, a Birmingham lawyer running for Alabama’s high court, said lower courts should follow direct orders of the Supreme Court in specific cases. But he said state justices have a duty to ignore precedent when the high court takes an unconstitutional position.
‘Checks and balances’
“What you’ll have is what the founding fathers said we’d have — checks and balances,” said Zeigler, who is making his first run for office. “It’s getting back to something old, the Constitution.”
Another candidate, Henry P. “Hank” Fowler, a member of Parker’s staff, said conservative judges must stop surrendering to liberal Supreme Court opinions “without a word of protest.” And lawyer Ben Hand said judges “can’t just break the law and then point to the guy down the street in the black robe and say, ‘He told me to.”’
For his part, Moore is running for governor against GOP incumbent Bob Riley, who has a big lead in the polls.