Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Alabama Justices Surrender to Judicial Activism
Birmingham News ^ | January 1, 2006 | Tom Parker

Posted on 01/16/2006 8:49:28 AM PST by Law

In 1997, a vicious thug entered the home of a pregnant Alabama woman. He raped and repeatedly stabbed her, then fled, leaving her to die in a house with three other children. Police acted swiftly and caught the attacker, Renaldo Adams, literally red-handed with blood. After a fair trial, Adams was convicted of rape and murder and given the death penalty. It took the jury less than 30 minutes to recommend his execution.

As an assistant attorney general under then Attorney General (now U.S. Sen.) Jeff Sessions, I helped prosecute Adams and was satisfied the Alabama jury chose the punishment that best fit his crime. Consequently, I was shocked to learn the Alabama Supreme Court just freed Adams from Death Row.

Although I am now a justice of the Alabama Supreme Court, I had to recuse from any involvement in Adams' case because I helped prosecute him. Because I believe the court's decision illustrates a serious problem with our judicial system, however, I write to explain what I regard as a failure to defend our Constitution and laws against activist federal judges.

You see, my fellow Alabama justices freed Adams from Death Row not because of any error of our courts but because they chose to passively accommodate - rather than actively resist - the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.

Those liberal justices declared last spring in the case of Roper vs. Simmons that "evolving standards of decency" now make it "unconstitutional" to execute murderers who were minors at the time of their crime. The justices based their ruling not on the original intent or actual language of the U.S. Constitution, but on foreign law, including United Nations treaties.

Ironically, one of the U.N. treaties invoked by the U.S. Supreme Court as a basis for its Roper decision is a treaty the United States has refused to sign. By insisting that American states submit to this unratified treaty, the liberals on the U.S. Supreme Court not only unconstitutionally invalidated laws in 20 states but, to do so, also usurped the treaty-making authority of both the president and the U.S. Senate.

I am not surprised the liberal activists on the U.S. Supreme Court go to such lengths to usurp more political power. I am also not surprised they use such ridiculous reasoning to try to force foreign legal fads on America. After all, this is the same court that has declared state displays of the Ten Commandments to be unconstitutional.

But I am surprised, and dismayed, that my colleagues on the Alabama Supreme Court not only gave in to this unconstitutional activism without a word of protest but also became accomplices to it by citing Roper as the basis for their decision to free Adams from Death Row.

The proper response to such blatant judicial tyranny would have been for the Alabama Supreme Court to decline to follow Roper in the Adams case. By keeping Adams on Death Row, our Supreme Court would have defended both the U.S. Constitution and Alabama law (thereby upholding their judicial oaths of office) and, at the same time, provided an occasion for the U.S. Supreme Court, with at least two new members, to reconsider the Roper decision.

After all, Roper itself was established as new U.S. Supreme Court "precedent" only because the Missouri Supreme Court refused to follow prior precedent. The U.S. Supreme Court used the appeal resulting from the Missouri decision to overturn its previous precedent and declined to rebuke the state court for disregarding the prior precedent.

State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are "precedents."

After all, a judge takes an oath to support the Constitution - not to automatically follow activist justices who believe their own devolving standards of decency trump the text of the Constitution. Thus, faithful adherence to the judicial oath requires resistance to such activism, and a changing U.S. Supreme Court membership makes such resistance more likely to bear good fruit.

The Adams case presented the Alabama Supreme Court with the perfect opportunity to give the new U.S. Supreme Court the occasion to overturn the unconstitutional Roper precedent. If our court had voted to uphold Adams' death penalty, he would have appealed the decision to the U.S. Supreme Court. Because the U.S. Supreme Court can accept only a handful of the petitions it receives, the court may not have heard the case at all, and Adams would have been executed as he deserves. However, if the new John Roberts-led court had taken the case, it could very well have overturned Roper.

But even if, in the worst-case scenario, the Roberts court had taken the Adams case but failed to overturn Roper, the Alabama Supreme Court would have been none the worse for standing up against judicial activism.

After all, the liberals on the U.S. Supreme Court already look down on the pro-family policies, Southern heritage, evangelical Christianity and other blessings of our great state. We Alabamians will never be able to sufficiently appease such establishment liberals, so we should stop trying and instead stand up for what we believe without apology.

Conservative judges today are on the front lines of the war against political correctness and judicial tyranny. Happily, Alabama's Supreme Court has a reputation of being one of the most conservative in the nation.

However, it does no good to possess conservative credentials if you surrender them before joining the battle. Tom Parker, a graduate of Dartmouth College and Vanderbilt Law School, is an associate justice of the Alabama Supreme Court.

Tom Parker, a graduate of Dartmouth College and Vanderbilt Law School, is an associate justice of the Alabama Supreme Court.


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Government; News/Current Events; Politics/Elections; US: Alabama; US: District of Columbia
KEYWORDS: alabamasupremecourt; judicialactivism; judicialtyranny; justicetomparker; roper; ropervsimmons; roymoore; scotus; tomparker
Remarkable. I've never heard of a state supreme court justice taking such a strong public stand on an issue.
1 posted on 01/16/2006 8:49:30 AM PST by Law
[ Post Reply | Private Reply | View Replies]

To: Law

Does the name "Roy Moore" ring a bell? : )


2 posted on 01/16/2006 8:50:54 AM PST by TheBigB ("Pitts. has no chance indoors against Indy. NONE."~~maineman)
[ Post Reply | Private Reply | To 1 | View Replies]

To: TheBigB

I stand corrected, of course. I meant I haven't heard of such a stand in an op-ed, drafted in criticism of one's colleagues.


3 posted on 01/16/2006 8:52:35 AM PST by Law ("...all who hate me love death" Proverbs 8:36b)
[ Post Reply | Private Reply | To 2 | View Replies]

To: Jeff Head

It's too bad more conservatives judges don't take such a stand.


4 posted on 01/16/2006 9:09:21 AM PST by Law ("...all who hate me love death" Proverbs 8:36b)
[ Post Reply | Private Reply | To 3 | View Replies]

To: Law
It's too bad more conservatives judges don't take such a stand.

It's even more bad that only a conservative judge would take such a stand.

5 posted on 01/16/2006 9:22:01 AM PST by Dahoser (Time to condense the nonsense: Terry Tate for Congressional Linebacker.)
[ Post Reply | Private Reply | To 4 | View Replies]

To: Law

<< Remarkable. I've never heard of a state supreme court justice taking such a strong public stand on an issue. >>

Wow.

Strong stuff.

God bless him!


6 posted on 01/16/2006 10:12:42 AM PST by Brian Allen (How arrogant are we to believe our career political-power-lusting lumpen somehow superior to theirs?)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Law
State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case.

Wow, so the Miranda Warning only applies to Ernesto Miranda?

Roe vs. Wade only applies to Jane Roe?

Alabama grows some interesting judges.

7 posted on 01/16/2006 10:30:39 AM PST by Dog Gone
[ Post Reply | Private Reply | To 1 | View Replies]

To: Dog Gone
[State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case.]

Wow, so the Miranda Warning only applies to Ernesto Miranda?

The decision in Miranda applied only to Miranda. The precedent stemming from that decision applies only as far as courts continue to apply it.

8 posted on 01/16/2006 10:43:52 AM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
[ Post Reply | Private Reply | To 7 | View Replies]

To: inquest

Yeah, there's those little things called stare decisis and res judicata that they teach in all law schools, except in Alabama it seems.


9 posted on 01/16/2006 10:50:47 AM PST by Dog Gone
[ Post Reply | Private Reply | To 8 | View Replies]

To: Dog Gone
As for stare decisis, read the article more closely:

"After all, Roper itself was established as new U.S. Supreme Court 'precedent' only because the Missouri Supreme Court refused to follow prior precedent. The U.S. Supreme Court used the appeal resulting from the Missouri decision to overturn its previous precedent and declined to rebuke the state court for disregarding the prior precedent."

And as for res judicata, you obviously have no idea what that is.

10 posted on 01/16/2006 10:58:44 AM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
[ Post Reply | Private Reply | To 9 | View Replies]

To: Dog Gone
Yeah, there's those little things called stare decisis and res judicata that they teach in all law schools, except in Alabama it seems.

And in Missourri and whatever law schools turned out the US Supreme Court. From the article:

After all, Roper itself was established as new U.S. Supreme Court "precedent" only because the Missouri Supreme Court refused to follow prior precedent. The U.S. Supreme Court used the appeal resulting from the Missouri decision to overturn its previous precedent and declined to rebuke the state court for disregarding the prior precedent.

So apparently some precedents are less subject to stare decisis, particularly if it provides the opportunity to drag the United States in a more liberal and/or libertine direction.

What this Alabama judge is stating is that that the composition of the US Supreme Court has changed, therefore it is time to test if a precedent can be overturned and a bloody murderer executed.

11 posted on 01/16/2006 11:09:44 AM PST by ExpandNATO
[ Post Reply | Private Reply | To 9 | View Replies]

To: Law
Forget Alito.  Tom Parker for US Supreme Court.
12 posted on 01/16/2006 11:28:35 AM PST by Celtman (It's never right to do wrong to do right.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Celtman
Forget Alito. Tom Parker for US Supreme Court.

Great idea. Too bad federal judges aren't elected...

13 posted on 01/16/2006 11:47:09 AM PST by Law ("...all who hate me love death" Proverbs 8:36b)
[ Post Reply | Private Reply | To 12 | View Replies]

To: Celtman

Imagine the debate in the Judiciary Committee about this little piece of jurisprudence. As long as Judge Parker was prepared to "Borked", we could all learn a lot.


14 posted on 01/16/2006 12:17:44 PM PST by bjc (Check the data!!)
[ Post Reply | Private Reply | To 12 | View Replies]

To: Dog Gone
_________________________________________________________

"ALABAMA SOME INTERESTING JUDGES"
________________________________________________________

Hmm, Dog Gone, you seem to misunderstand the nature of a legal "precedent". A "precedent" isn't a law, a "precedent" is merely a guide, a tradition, a nod of the head to other judges who have ruled on sundry aspects of statute laws in the past without having their rulings overturned by a higher court.

Justice is not served by blind allegiance to precedence.
Neither is justice served by off-the-wall voo-doo semantics.

Alabama Supreme Court Justice Tom Parker speaks clearly.
A most welcome trait in a lawyer or a judge.
15 posted on 01/16/2006 12:50:40 PM PST by the final gentleman
[ Post Reply | Private Reply | To 7 | View Replies]

To: the final gentleman

A judge is obligated to follow the law taking into account precedents and direction, especially from higher courts.

Perhaps "obligated" is too strong a word, because they can rule any way they choose. In this case, they could have ignored the US Supreme Court ruling, but since the ruling is recent, they should expect quick and decisive reversal by the US Supreme Court, along with a rebuke.

Alabama, of all places, ought to be familiar with what happens when the Alabama Supreme Court and the Federal Courts collide.


16 posted on 01/16/2006 12:59:32 PM PST by Dog Gone
[ Post Reply | Private Reply | To 15 | View Replies]

To: Dog Gone
Perhaps "obligated" is too strong a word, because they can rule any way they choose. In this case, they could have ignored the US Supreme Court ruling, but since the ruling is recent, they should expect quick and decisive reversal by the US Supreme Court, along with a rebuke.

Recent? Well, I suppose we have to accept the recent land-grabbing decision by the SOOpreeem court using the "recent" rule.

nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (taking it for private use is okay now)

17 posted on 01/16/2006 1:16:46 PM PST by AndrewC (Darwinian logic -- It is just-so if it is just-so)
[ Post Reply | Private Reply | To 16 | View Replies]

To: AndrewC

No, we don't have to accept it and the Supreme Court told us how. Have your state legislature pass a law prohibiting the use of eminent domain for economic development purposes. Many states have now done that.


18 posted on 01/16/2006 1:27:37 PM PST by Dog Gone
[ Post Reply | Private Reply | To 17 | View Replies]

To: Dog Gone
Have your state legislature pass a law prohibiting the use of eminent domain for economic development purposes.

Let me get this straight. By default a political entity is prohibited from taking your land for public use, but can take it for private use? Get real.

19 posted on 01/16/2006 1:36:09 PM PST by AndrewC (Darwinian logic -- It is just-so if it is just-so)
[ Post Reply | Private Reply | To 18 | View Replies]

To: AndrewC

That's not even close to what I said.


20 posted on 01/16/2006 1:40:31 PM PST by Dog Gone
[ Post Reply | Private Reply | To 19 | View Replies]

To: Dog Gone

Too bad the U.S. Supreme Court now prohibits state legislatures from passing laws that authorize capital punishment for murderers if they were minors when they committed the crime.

As for stare decisis, it binds lower federal courts and, through the Supremacy Clause, state courts as well. But this is a very recent precedent that was not well reasoned and may well change the next time the issue comes before SCOTUS, so an argument could be made that the Alabama Supremes should have distinguished the present case and have SCOTUS look at the facts of that particular case. I just hope that the Alabama Supremes' decision to overturn the death-penalty conviction is appealed to SCOTUS on a timely basis and that, if SCOTUS comes to its senses and overturns that absurd precedent that was based not on our laws and constitutional traditions but on Euroweenie theories, and that the Alabama Supremes' decision merely added a year or so to the life of that animal who should have been executed long ago.


21 posted on 01/16/2006 1:42:51 PM PST by AuH2ORepublican (http://auh2orepublican.blogspot.com/)
[ Post Reply | Private Reply | To 18 | View Replies]

To: Dog Gone
No, we don't have to accept it and the Supreme Court told us how. Have your state legislature pass a law prohibiting the use of eminent domain for economic development purposes. Many states have now done that.

That's what they told Dred Scott as well. If he wanted to be a free man he should have had his state legislature pass a law prohibiting the possession of slaves. Easy enough, huh?

22 posted on 01/16/2006 1:48:51 PM PST by FreedomCalls (It's the "Statue of Liberty," not the "Statue of Security.")
[ Post Reply | Private Reply | To 18 | View Replies]

To: Law
I stand corrected, of course. I meant I haven't heard of such a stand in an op-ed, drafted in criticism of one's colleagues.

He had to recuse himself from the case, so he was unable to publish a dissent. If he had not been compelled to recuse himself, he would have used the same critical language, or worse, to express is disagreement with his colleagues. Once a decision has been issued, judges are free to discuss them outside the court.

23 posted on 01/16/2006 1:57:03 PM PST by connectthedots
[ Post Reply | Private Reply | To 3 | View Replies]

To: Law

Job One for the new Roberts-Alito Supreme Court should be to dismantle the Court's decisions that use international treaties to strike down laws the Court's liberal wing doesn't like. If this nonsense isn't stopped soon, we will, in effect, be ruled by Western European politicians, and our own duly enacted laws will be null and void.


24 posted on 01/16/2006 6:09:47 PM PST by Holden Magroin
[ Post Reply | Private Reply | To 1 | View Replies]

To: Dog Gone
That's not even close to what I said.

I see no other way to intrepret the situation. The case went to the SOOpreem court because of some unsettled legal dispute. The dispute involves whether a political entity in the United States possesses the power to deprive one individual of property in order to give it to another private individual outside of some dispute over contracts or penalties.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

I'm pretty sure most people don't want their stuff taken to be given to someone else and I don't think 50 states have laws establishing for any political entity such power. So the consent must be a default power of any political entity. One such political system having that power is communism. I don't think it should be part of our system and the constitution has these amendments for a reason.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

25 posted on 01/16/2006 6:14:12 PM PST by AndrewC (Darwinian logic -- It is just-so if it is just-so)
[ Post Reply | Private Reply | To 20 | View Replies]

To: AndrewC
Eminent domain existed long before our country was established and the Founders recognized that and did nothing to stop it. All they did was institute safeguards to prevent takings without due process.

The Kelo decision expanded that right far beyond what the Founders or any of us could have envisioned.

It's a horrible decision, but there is a way to defend against it. Texas has. Your results may vary.

26 posted on 01/16/2006 6:27:00 PM PST by Dog Gone
[ Post Reply | Private Reply | To 25 | View Replies]

To: Law
Ironically, one of the U.N. treaties invoked by the U.S. Supreme Court as a basis for its Roper decision is a treaty the United States has refused to sign. By insisting that American states submit to this unratified treaty, the liberals on the U.S. Supreme Court not only unconstitutionally invalidated laws in 20 states but, to do so, also usurped the treaty-making authority of both the president and the U.S. Senate.

If the treaty was ratified, it would become as law via article 6, sec 2. If it was not ratified, the Supreme Court made a grave, and intentional, error and all cases coming from this court has to be suspect.

27 posted on 01/16/2006 6:27:00 PM PST by William Terrell (Individuals can exist without government but government can't exist without individuals.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Dog Gone
Eminent domain existed long before our country was established and the Founders recognized that and did nothing to stop it.

Eminent domain is for public use and it is established by the fourth amendment. The tenth amendment establishes limits(at least it used to).

28 posted on 01/16/2006 6:39:07 PM PST by AndrewC
[ Post Reply | Private Reply | To 26 | View Replies]

To: AndrewC

You must have a different copy of the Constitution than I do.


29 posted on 01/16/2006 6:52:08 PM PST by Dog Gone
[ Post Reply | Private Reply | To 28 | View Replies]

To: Dog Gone
You must have a different copy of the Constitution than I do.

Well, I've posted excerpts from mine, including the one that says "public use". You have the opportunity to post from your copy words supporting your "private use" argument.

30 posted on 01/16/2006 6:59:06 PM PST by AndrewC
[ Post Reply | Private Reply | To 29 | View Replies]

To: AndrewC

I don't even have a private use argument. It's like we're speaking two different languages here.

Quote to me the language of the Fourth Amendment from your version of the Constitution. I want to see which words you think have anything to do with eminent domain.


31 posted on 01/16/2006 7:06:47 PM PST by Dog Gone
[ Post Reply | Private Reply | To 30 | View Replies]

To: Dog Gone
Quote to me the language of the Fourth Amendment from your version of the Constitution. I want to see which words you think have anything to do with eminent domain.

I made a mistake in the number, it is the fifth amendment, but it has been posted.

Just to consider with whom you are agreeing, here are the 5 justices that voted to take away private property.

Stevens was joined in the majority by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

They don't look like conservatives to me.

32 posted on 01/16/2006 7:11:43 PM PST by AndrewC
[ Post Reply | Private Reply | To 31 | View Replies]

To: AndrewC

I don't know where you're getting off asserting that I agree with them. I acknowledge that they made the decision and that it's now the law of the land unless steps are taken.

Hello, that's reality.

I don't agree with the decision and I think it's the worst in about 35 years.

Hope that clears things up for you.


33 posted on 01/16/2006 7:17:34 PM PST by Dog Gone
[ Post Reply | Private Reply | To 32 | View Replies]

To: Dog Gone
I don't agree with the decision and I think it's the worst in about 35 years.

Okay, that is fine, but for what reason do you disagree? I disagree with the decision, because a government does not have the power to take property for private use. That would completely nullify the meaning of "public use".

34 posted on 01/16/2006 7:20:32 PM PST by AndrewC
[ Post Reply | Private Reply | To 33 | View Replies]

To: AndrewC
I disagree with it for the same reason. To take private property for public use is one thing (and even the wisdom of that can be debated depending on the particular facts).

To take it to give to someone for private use is abhorrent.

35 posted on 01/16/2006 7:30:05 PM PST by Dog Gone
[ Post Reply | Private Reply | To 34 | View Replies]

To: Dog Gone
To take it to give to someone for private use is abhorrent.

Well, I guess I agree with you 100%

36 posted on 01/16/2006 7:38:01 PM PST by AndrewC
[ Post Reply | Private Reply | To 35 | View Replies]

To: AndrewC

I'm glad we cleared that up. I couldn't understand why you were fighting with me.


37 posted on 01/16/2006 7:40:23 PM PST by Dog Gone
[ Post Reply | Private Reply | To 36 | View Replies]

To: Dog Gone
I'm glad we cleared that up. I couldn't understand why you were fighting with me.

Well, I don't know except that it cannot be the responsibility of an individual state to correct the errors of the U.S. Supreme Court. The concept of taking private property for private use is such an anthema to individual freedom that it must not be accepted in any form. Public use is one thing. It is tangible and real. Public good is intangible and subject to perversion.

38 posted on 01/16/2006 7:48:33 PM PST by AndrewC
[ Post Reply | Private Reply | To 37 | View Replies]

To: AndrewC

Correcting the errors of the Supreme Court is a very difficult proposition. Congress and the President can do it if they had the guts.

Sometimes the individual states can do it, as in this case. That's actually pretty rare.

The average citizen can't do anything about it, ever, except perhaps through the ballot box, but that's a longshot.


39 posted on 01/16/2006 7:58:41 PM PST by Dog Gone
[ Post Reply | Private Reply | To 38 | View Replies]

To: Dog Gone
The average citizen can't do anything about it, ever, except perhaps through the ballot box, but that's a longshot.

Well, here we have to disagree. You and I are doing it right now. We are complaining about the decision and giving our reasons. That is the purpose of the first amendment. Enough complaining and things will get done. (at least that is the idea behind the first)

40 posted on 01/16/2006 8:04:12 PM PST by AndrewC
[ Post Reply | Private Reply | To 39 | View Replies]

To: AndrewC
I suppose you're correct in the sense that the Court isn't entirely tonedeaf to public opinion and every bit of public comment might help in some future case to help influence judicial opinion. Surely if they're willing to look to european courts for guidance, they might consider public opinion and thought in some small degree.

Constitutionally, though, the public has no direct way to influence decisions. We get a very indirect way to do so in our choice of President and Senators but our control over their decisions once they're elected is minimal.

Our voices can affect those who seek re-election and politicians generally want to keep their constituencies satisfied. But I'm not going to think that my posts at this forum will do much to affect current Supreme Court decisions. I don't think they'll do anything.

41 posted on 01/16/2006 8:19:58 PM PST by Dog Gone
[ Post Reply | Private Reply | To 40 | View Replies]

To: Dog Gone
I don't think they'll do anything.

You'd be surprised. Rathergate.

42 posted on 01/16/2006 8:52:05 PM PST by AndrewC
[ Post Reply | Private Reply | To 41 | View Replies]

To: AndrewC

Somewhat different than changing Supreme Court decisions, but your point about the citizen warrior making his voice known is well taken.


Than never used to happen.


43 posted on 01/16/2006 8:59:31 PM PST by Dog Gone
[ Post Reply | Private Reply | To 42 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson