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Alabama Judge Declares War on U.S. Supreme Court


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--vis the other branches, that would be a start."

Source: http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1141293914878

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