Alabama Judge Declares War on U.S.
Supreme Court
By Tony Mauro
Legal Times
03-03-2006
Sitting calmly in his impeccably neat office at Alabama's
Justice Building, state Supreme Court Justice Tom Parker does not
look like a man at war with the U.S. Supreme Court.
But even before he says a word, his desk offers hints.
Prominently displayed are Mark Levin's conservative attack on the
U.S. Supreme Court, "Men in Black," and Phyllis Schlafly's "The
Supremacists: The Tyranny of Judges and How to Stop It."
The book Parker refers to the most, however, is a small one
he pulls out of his pocket frequently during the conversation with
a visiting reporter. It contains the texts of the Constitution and
the Declaration of Independence and is signed by his hero, Justice
Clarence Thomas, who swore him into office a year ago.
Last month, Parker wrote an op-ed in The Birmingham News,
attacking the high court's "blatant judicial tyranny." The case
that had gotten him roaring was the outcome in 2005's Roper v.
Simmons, which tossed out the death penalty for inmates who
were under 18 at the time of their crimes.
It was a blistering opening salvo in what Parker hopes will
be a wide re-examination of the role of the Supreme Court ahead of
the fight over the next vacancy. And despite a certain level of
nomination fatigue in Washington, in Parker's view that vacancy
can't come soon enough.
In the column, Parker called for what could be considered an
act of judicial sedition. Because Roper was based, he
wrote, on the application of foreign law (a notion its author,
Justice Anthony Kennedy, would dispute), it was an
"unconstitutional opinion" that his Alabama colleagues should
"actively resist."
But instead, Parker's own court, obeying the Roper
ruling, last year set aside the death penalty for convicted
murderer Renaldo Adams, who was 17 when he raped and stabbed an
Alabama woman.
Parker had to recuse in the Adams case because, as a
prosecutor at the time, he had helped bring the case against the
defendant. Still, Parker felt obliged to publicly criticize the
colleagues who spared Adams' life.
"State supreme court judges should not follow obviously
wrong decisions simply because they are precedents," he wrote.
"After all, a judge takes an oath to support the Constitution --
not to automatically follow activist judges who believe their own
devolving standards of decency trump the text of the
Constitution."
Strong words from a state Supreme Court justice, even in a
state with a history of defying federal dictates -- most notably,
the late Gov. George Wallace's refusal to integrate the University
of Alabama in 1963.
It's also a place well known for the conservatism of its
judiciary. But that didn't matter to Parker. "It does no good to
possess conservative credentials," he wrote, "if you surrender
them before joining the battle."
Reaction to Parker's shot across the bow was swift. His
fellow justice Michael Bolin told the Associated Press that
Parker's column was "an unprecedented attack by a member of the
Supreme Court on each fellow justice and an attack on the court as
an institution." Bolin hinted that Parker had violated a state
canon of judicial ethics that states judges should promote
confidence in the judiciary.
More than a month later, Parker now says no ethics complaint
has been filed and his relations with his colleagues are as
collegial as they were before the column appeared. Bolin's
comments were made "in the heat of emotion, but they don't play
out over time," Parker says, adding that he had "strong
conversations" with all of his colleagues about the column. (Bolin
did not return phone messages.)
But Parker's attack on the U.S. Supreme Court has had a
concrete legal effect. Bryan Stevenson, director of the Equal
Justice Initiative, which represents indigent defendants and
prisoners in Alabama, says he is aware of at least two cases in
which Parker has been asked to step aside in reviewing pending
death sentences. Parker declined to say how he will respond to the
motions.
"There is fear that he will not follow Supreme Court
precedents," says Stevenson. "Judges express dissent or
disapproval all the time, but they apply decisions they do not
agree with. The idea that a judge can refuse to follow a decision
he does not like seems to be the very definition of the kind of
judicial activism he criticizes."
Stevenson calls Parker's stance "pretty puzzling and
outrageous."
FOREIGN SUBSTANCE
Puzzling? Maybe not. A native of Montgomery, the 54-year-old
Parker graduated from Dartmouth College, got a law degree from
Vanderbilt University, and studied law in Brazil on a Rotary
International fellowship. But though Parker describes himself as a
student of foreign law, his studies have left him certain that it
has "no relevance whatsoever" in Supreme Court determinations.
"Our founding fathers made a clean break with the laws of
England," he adds.
Many of his conservative views, Parker says, were shaped at
Vanderbilt or, more accurately, in reaction to Vanderbilt. "I was
personally embarrassed that we could learn constitutional law and
never look at the Constitution." Waving his copy of the
Constitution, Parker says, "Once you cut yourself loose from the
text of the Constitution, there is no end."
After law school, Parker plunged into studying the Framers
and worked in the state attorney general's office. In private
practice, he was part of the team that unsuccessfully defended the
state's public school "moment of silence" law in Wallace v.
Jaffree, in 1985. He worked for Alabama groups affiliated with
Christian right icon James Dobson.
But Parker became best known statewide several years ago as
a spokesman for then-Chief Justice Roy Moore in his battle to keep
a Ten Commandments monument in the rotunda of the judicial
building. Parker was assistant director of the state court system,
and he was filling in for a departing public information officer;
but he acknowledges without hesitation that he strongly supported
Moore's view that the First Amendment permits the display.
Like Thomas, Parker believes that the establishment clause
of the First Amendment does not apply to the states, so he insists
a federal judge had no authority to order Moore to remove the
monument. In November 2003 the state Court of the Judiciary, which
reviews ethics complaints against judges, ordered Moore removed
from office for defying the federal order.
Moore is now running for governor, and in the wake of his
January op-ed (which ran months after Adams' death sentence was
commuted), some think Parker'' blast was the opening of a campaign
for chief justice. Parker won't confirm the rumors.
CONFEDERATE CRITICISM
Through side doors and shortcuts, the affable Parker heads
for the main floor of the rotunda, the place where the Ten
Commandments monument used to sit. The floor is bare; the only
remaining evidence of the episode, Parker points out, is the
cracked door frame on what was supposed to be the building's press
room. It stored the large monument during the long legal battle.
In the rotunda a wall display that Parker dismisses as
"politically correct" has now replaced the monument. The display
includes the Ten Commandments along with the Code of Justinian and
the Bill of Rights, among other documents.
In the afterglow of the Moore episode, Parker decided to run
for the state Supreme Court against an incumbent who had been
critical of Moore's efforts.
During the campaign, as documented by the Montgomery-based
Southern Poverty Law Center, Parker handed out Confederate flags,
made appearances with pro-Confederate groups, and attended a
birthday party for the late Nathan Bedford Forrest, founder of the
original Ku Klux Klan.
"These appearances put Tom Parker way outside the mainstream
in Alabama," says the center's Mark Potok.
Parker shrugs off the criticism and says with a laugh that
the controversy over his appearances "helped me reach voters I
never could have reached" without the publicity. He says that from
his reading of history, Forrest withdrew from the Klan when it
became violent.
Retired Birmingham News reporter Stan Bailey, who
covered the Alabama courts for more than 30 years, was not happy
with Parker's tactics. "We've come a long way from the days when
candidates have to pay homage to the Klan," Bailey says.
But he adds that any charges that Parker is a racist are
"totally wrong. He's been outspoken on the other side." And
Parker, too, points to his work with religious and other groups
seeking racial harmony in Alabama.
In spite of -- or because of -- the controversy, Parker won
the election with 56 percent of the vote. Through mutual friends,
Parker asked whether Thomas would give him the oath of office in
January 2005. Thomas agreed, and Parker traveled to Washington for
the private ceremony. A day later, Moore gave him another oath
back in Alabama, and Parker said, "I have been doubly blessed to
have been sworn into office by two heroes of the judiciary."
As a justice, Parker has sometimes inserted his beliefs on
constitutional issues into routine cases. In
Birmingham-Jefferson Civic Center Authority v. City of Birmingham,
last year, he asserted that all three branches of government --
not only the judiciary -- have roles in interpreting the
Constitution. Marbury v. Madison, he noted, said
constitutional interpretation was "emphatically" the role of
judges -- but not "exclusively." In a dissent in a 2005 child
custody case, Parker said the majority's view was flawed in part
because it did not recognize that parental rights flow from God,
not the state.
Parker has also issued press releases about legal matters
occurring outside Alabama. One attacked the "state-sanctioned
killing" of Terri Schiavo as an example of judicial excess, and
another criticized the Supreme Court's Ten Commandments rulings
last June. Those too were a "judicial power grab," Parker said.
And in his newspaper op-ed, Parker wrote that the "liberals
on the U.S. Supreme Court already look down on ... pro-family
policies, Southern heritage, [and] evangelical Christianity."
(Parker would include Justice Kennedy in that liberal bloc.)
But Parker says this isn't about advancing his Baptist
religious views from the bench.
"As a Christian, I do value the sanctity of life," he says.
"But that is no different from the inalienable right to life
described in the Declaration of Independence, the foundational
document of this country." His role model Thomas is one of the few
justices who agree on the doctrinal importance of the Declaration.
What, then, is Parker's point? At every turn, he says, he
wants the public to understand that "the big social issues are
being decided by the Supreme Court rather than Congress" and that
the Court is deciding them unmoored from the words of the
Constitution as well as religious values. "They are not giving
proper deference to the other branches; they are pushing an
agenda," Parker says of the Court.
Unelected judges, like those on the U.S. Supreme Court,
invariably move to the left under the spell of the liberal media,
Parker adds. "I've been elected by the people to perform a role,
not to be part of some nice society of elected officials."
A LOST OPPORTUNITY
Parker didn't mince words in his Birmingham News
piece, labeling Renaldo Adams "a vicious thug" who was caught by
police "literally red-handed with blood."
Parker was an assistant attorney general in Alabama when
Adams was prosecuted. But upon ascending to the state's high
court, he had wanted Adams' case to serve as an opportunity for
the U.S. Supreme Court to overturn its decision in Roper,
which was decided in March 2005, before Chief Justice John Roberts
Jr. and Justice Samuel Alito Jr. joined the Court.
"I wanted the Supreme Court to have another shot," Parker
says. He acknowledges that Alito and Roberts would merely replace
justices in the minority in Roper, making a different
outcome unlikely. "Given the age of the justices, it is not
inconceivable there might be another vacancy by the time the case
would have gotten to them, and there could be a different result."
More so than even the last two vacancies, Parker says, the
next high court opening will trigger a historic struggle for the
soul of the Court, if not the entire government. "Polls show that
public respect for the Supreme Court is falling. That is
self-inflicted damage," he says. "With another vacancy the Court
could redeem itself."
That does not necessarily mean reversing all its liberal
precedents right away, he adds.
"If they would just stop that succession of decisions on
cultural issues," he says, "if they would just rethink what they
are doing and return to their proper role vis-à-vis the other
branches, that would be a start."
Source:
http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1141293914878
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