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January 3, 2006

Should state supreme courts refuse to follow Gideon, Miranda, Blakely?

How Appealing just linked to this stunning op-ed by Justice Tom Parker of the Supreme Court of Alabama, which apparently appeared on Sunday in The Birmingham News.  In his jaw-dropping commentary, Justice Parker contends that his colleagues on the Alabama Supreme Court should have declined to follow Roper in order to keep a juvenile killer on death row.  Here is part of his argument:

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."...

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.

These quotes highlight not only Justice Parker's passion, but also his limited ability to count heads.  None of the new Justices are replacing anyone in the Roper majority, so it would be quite a feat for a Roberts Court to undue Roper. 

Moreover, I continue to find it remarkable that persons purportedly concerned about pro-family policies and evangelical Christian blessings become so aggrieved by a decision which precludes states from executing juvenile offenders.  I wonder if Justice Parker has read the recent editorial series from his own Birmingham News, entitled "Choosing Life in a Death Penalty State," which forcefully argues that a true pro-family, evangelical Christian commitment to a culture of life calls for doing away with the death penalty altogether.

Finally, I wonder if Justice Parker thinks that state supreme courts ought to actively resist the application of other contentious SCOTUS rulings like Gideon or Miranda or Blakely.  (Of course, some might claim that California and Tennessee and a few other states are already actively resisting Blakely.)

UPDATE: I see Steve Vladeck at PrawfsBlawg has some more thoughts about the op-ed in this post titled "Apparently, the Supremacy Clause Doesn't Apply in Alabama."

January 3, 2006 at 05:50 PM | Permalink


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» Apparently, the Supremacy Clause Doesn't Apply in Alabama from PrawfsBlawg
Over at How Appealing, the ever-reliable Howard Bashman links to a terribly disturbing op-ed by Alabama Supreme Court Justice Tom Parker apparently published over the weekend, and arguing, I kid you not, that his brethren on the Alabama Supreme Court g... [Read More]

Tracked on Jan 3, 2006 6:17:04 PM

» Apparently, the Supremacy Clause Doesn't Apply in Alabama from PrawfsBlawg
Over at How Appealing, the ever-reliable Howard Bashman links to a terribly disturbing op-ed by Alabama Supreme Court Justice Tom Parker apparently published over the weekend, and arguing, I kid you not, that his brethren on the Alabama Supreme Court g... [Read More]

Tracked on Jan 3, 2006 6:19:42 PM


Isn't this just what Judge Reinhardt does all the time -- decide a case based on what you want the law to be rather than what it is, with the hope that the Supreme Court will grant cert and come out the way you want? I don't recall your objections when that happens. Or is the problem that Parker is a conservative rather than a liberal?

Posted by: Ken | Jan 3, 2006 8:59:59 PM

Ken, Have you ever read an opinion by Judge Reinhardt ?

Posted by: S.cotus | Jan 3, 2006 9:01:17 PM

Disaffected would be trackback:

"True Activism" from "The Debate Link".
Available here:

David Schraub,
Carleton College '08

Posted by: David Schraub | Jan 3, 2006 9:17:33 PM

It seems to me that Justice Parker's main concern with Roper appears to be the reliance on foreign law. It's not a matter of deference to the U.S. Supreme Court's preferred interpretation of a portion of the U.S. Constitution -- if that were all, I think Justice Parker would defer. But that's not what happened in Roper, in which the justices chose to rely on foreign law, including a United Nations treaty that the United States has refused to ratify, as grounds for their ruling.

It seems to me that Justice Parker found such a ruling to be clearly extrajurisdictional and, because his judicial oath is to the United States Constitution and not the United Nations or to the U.S. Supreme Court, he believed it was his duty to actively resist such an unlawful ruling.

For Justice Parker to be in the wrong, it would seem to me, one must show how the judicial oath of office requires submission to these other authorities rather than the constitution itself.

-- Appellate attorney

Posted by: Southern Lawyer | Jan 4, 2006 11:28:15 AM

By the way, Justice Parker has written an opinion against judicial supremacy. It can be found here: http://www.parkerforjustice.com/images/Parker_opinion_against_judicial_supremacy.pdf

The opinion is well-written and strongly argued -- but not too long, so it's worth taking the time to read it for purposes of this discussion.

Posted by: Southern Lawyer | Jan 4, 2006 11:32:05 AM

Prawfsblog and others should hold on a minute. This issue is not so black & white as they appear to say. Justice Parker at least has some good company in Abraham Lincoln and Andrew Jackson, and his critics should acknowledge the fundamental problem that he is addressing.

In particular, Prawfsblog should note that the Supremacy Clause says THE CONSTITUTION is the Supreme Law of the Land, not THE DECISIONS OF THE U.S. SUPREME COURT. The U.S. Supreme Court is "the final arbiter of the meaning of the Constitution" only in its own mind (cf., Casey v. Planned Parenthood) -- or the minds of Prawfsblog and others. Lincoln, Jackson, and Parker are free to disagree -- and they have, they do, and they will. In the end, State judiciaries take an oath to uphold the Constitution, not the decisions of the U.S. Supreme Court. Obviously, we have a mechanism for the federal courts, particularly the U.S. Supreme Court, to try to have the final say, but the Supreme Court is simply too small to review every wayward lower-court decision (whether federal or State). (Look at the Blakely mess, or the batch of "Holiday" display cases that were decided in 2005.)

The howls of protest about Justice Parker's op-ed piece are so loud because the Supreme Court is actually so weak. We desperately need a culture of compliance to Supreme Court decisions if the Supreme Court is to have any real power. As soon as the culture of compliance wanes, the Supreme Court's power wanes with it.

With this fundamental weakness in mind, the Supreme Court needs to be particularly careful with issues of its own legitimacy and political capital in our democracy. When the Supreme Court strikes down capital punishment (e.g., Furman v. Georgia and its predecessors), or strikes down capital punishment for juveniles (by overruling its own recent precedent by citing foreign sources of law -- Roper), or decides to find an unrestricted abortion license in the Constitution, or steps into a national Presidential election where the Constitution clearly reposes the final judgment in the Congress (Bush v. Gore II), it wastes its political capital and destroys its very legitimacy. Thus, while Justice Parker may sound like a raving loon to some, the Supreme Court -- and the entire Bar -- should at least hear in Parker's complaint strong reminders of the limits of the Supreme Court's legitimacy, and of its power, in our democracy.

In my lifetime, the Supreme Court has made 180-degree switches on the death penalty (Furman), the juvenile death penalty (Roper), and the criminality of homosexual conduct (Lawrence) FROM ITS OWN RECENT PRECEDENTS. (I don't need to go into the long list list areas in which Supreme Court jurisprudence, while not self-contradictory, is completely nonsensical.) Every time the Supreme Court reverses itself, the Constitution does not change, but the Supreme Court's interpretations of the Constitution have -- diametrically. In light of the stunning reversals in my lifetime, why should I, or Justice Parker, or anyone else care what the Supreme Court says about anything? Prawfsblog and others who are outraged by Justice Parker's comments must have a thoughtful, sincere answer for this question, or they will continue to see the power of the Supreme Court slip away at an increasingly rapid pace.

In particular, those on the left (particularly academicians, journalists, and other ensconsed opinion writers) seem to want to solemnize Supreme Court decisions only after after a liberal result has been decided. If this habit continues, our loss will be both the Rule of Law and democracy itself. If Prawfsblog and like-minded individuals want to protect the Rule of Law and American democracy, they must start by supporting Supreme Court decisions that are conservative just as hard as they support Supreme Court decisions that are liberal -- publicly and vociferously. (The law school's role in objecting to the Solomon Amendment is particularly shameful -- liberal deans and professors have not even made a pretense of reasonably distinguishing Grove City College; they simply seek a Supreme Court decision striking down the Solomon Amendment that is pure fiat. If you want to know why they think this is a possibility, check out Justice Kennedy's non-existent treatment of Bowers in Lawrence.)

Evangelical Christians, like Justice Parker, see the game for what it is: The Supreme Court's decisions are temporary until they are liberal. Then they become cast in stone. (And liberal decisions are non-binding if they logically require a conservative result in a future case.) If that's the way the game is played by Prawfsblog and others (and it is, by the way), then don't be surprised, much less howl in protest, when evangelical Christians -- or other conservatives -- say that the Judicial Emperor is naked.

Abraham Lincoln was no evangelical Christian, but he shares a similar view of the limits of the Supreme Court in our democracy with Justice Parker. We should at least listen to them both.


Posted by: Mark | Jan 4, 2006 12:04:57 PM

Interesting insights, Southern Lawyer and Mark, though I disagree that Roper truly "relied" on foreign law (though I would agree that the discussion of foreign law in Roper is part of the reason the decision has gotten under folks' skin).

I am interested in taking seriously the Parker's ideas about the role of lower court judges resisting Supreme Court declarations, and that's why I asked whether Justice Parker thinks that state supreme courts ought to actively resist other SCOTUS rulings like Gideon or Miranda or Blakely. These decisions are arguably far more "activist" than Roper, and they are also far more disruptive to the day-to-day operation of the criminal justice system.

The op-ed is so provocative because Parker almost asserts that his colleagues should have felt obliged to resist Roper. But if this is true for Roper, is it no less true for Gideon or Miranda or Blakely?

Posted by: Doug B. | Jan 4, 2006 2:31:56 PM



Posted by: Kierkegaard | Jan 4, 2006 7:03:41 PM


I think that Gideon, Miranda, and Blakely are great examples of the fact that State judiciaries (as well as State legislatures) often do not take U.S. Supreme Court decisions seriously -- as a matter of historical fact. After Gideon, State judiciaries were loathe to actually require adequate compensation for appointed counsel. For example, it was not too long ago that appointed counsel received $20/hour for their work (less than 20% of the typical overhead cost) in New York, suits in State and federal court objecting to that situation notwithstanding. After Miranda, the list of "voluntariness" or exclusionary rule, or "fruit of the poisonous tree" State cases is appalling. As are cases where State judiciaries have used their fact-finding power ("I find, by a preponderance of the evidence, that Patrolman X's testimony that he gave a Miranda warning is credible.") to essentially gut Miranda. As for Blakely, your reference to the decisions of the California and Tennessee judiciaries speaks for itself.

Your examples are great ones to highlight the pernicious effect of a culture of (ostensible) compliance on the Rule of Law. Scotus says, "We don't care if State judiciaries actually follow our decisions. We just can't tolerate (the Missouri Supreme Court in Roper, and a few other liberal State decisions, aside) State judiciaries actually stating publicly that they are not following our decisions. As long as they give us a wink and a nod, however, we need only step in occasionally as we see fit." I submit that the legal community's culture of (ostensible) compliance highlights the weakness of the Supreme Court in our system, not its strength. The loser is the Rule of Law.

So all lower courts get to decide, within broad limits, how much they are going to follow U.S. Supreme Court precedents. Justice Parker and the Missouri Supreme Court, regarding Roper, may be more honest about their refusal to follow SC precedent, but don't kid yourself into thinking that a lower court that really wants to thwart a SC decision needs to (or tactically, should be seen to) be so brazen. Again, this reality is why a lot of conservatives (and I don't count myself among them) have maintained that the Judicial Emperor is naked. I disagree with them, but that's why I strongly argue that the Bar and the legal academy have the primary responsibility to make sure that lawyers are trained, and rewarded, to use candor and honesty, and logic and reason, as the best antidotes to judicial fiat in our democracy. On this point, I am afraid, the legal academy has increasingly let us down, and the ultimate victim will be the Rule of Law.


P.S. With regard to the use of foreign sources of law in Roper, I used the word "relied" intentionally. It does not mean "followed" or "bound by," but instead has a broader meaning encompassing both "persuaded by" and "justified."

Posted by: Mark | Jan 5, 2006 10:32:30 AM

Parker's article, which disparaged his fellow justices on the state Supreme Court, focused on their decision to abide by a 2005 U.S. Supreme Court ruling (Roper v. Simmons) that reinforced an earlier decision which had struck down state laws allowing for the execution of minors.

The decision of the Alabama justices was 8 - 0, Parker recused himself, in favor of instructing the Alabama Criminal Court of Appeals to decide whether the Roper decision requires the court to change the death sentence of a minor, Renaldo Adams, to life without parole for the gruesome murder of a pregnant Alabama woman.

Justice Parker recused himself from the Adams case because he had been involved in the prosecution of the case as an assistant to Attorney General Bill Pryor, not Jeff Sessions as he mistakenly claims in his article.

Parker regards his fellow justices' decision to follow the U.S. Supreme Court's precedent "…as a failure to defend our U.S. Constitution and laws against activist federal judges." Moreover, Parker accuses them of passively accommodating rather than actively resisting the unconstitutional majority opinion of the U.S. Supreme Court.

While Parker is correct that Roper is another example of judicial activism, the decision by his colleagues to abide by the higher court's ruling does not constitute a failure to defend the U.S. Constitution nor is it passive accommodation of judicial activism. The other eight justices were in fact upholding the rule of law because all judges are bound by precedent.

Conservative judicial activism is no more acceptable than liberal judicial activism because in the end both lead to an undermining of the public respect and trust of the law. Consequently, by advocating that conservative judges engage in judicial activism by refusing to uphold the precedents of the U.S. Supreme Court, Parker himself fails the test of judicial restraint.

This does not mean that precedents cannot be challenged.

Parker is correct in advocating that precedents such as Roper may be challenged in order to have them reviewed. But the proper venue for challenging precedents is outside a judge's chambers. The most suitable officials for challenging precedents are state attorney generals or governors. Because every lower court judge is bound by precedent, it is up to the attorney general or governor to appeal their case all the way to the U.S. Supreme Court which is the only judicial body that can change a precedent.

Unfortunately, Parker appears to have also misinterpreted the Roper majority's attitude toward the failure of lower courts to uphold precedent.

He apparently concluded that because the majority in the Roper decision did not reprimand the Missouri Supreme Court for failing to follow precedent in a previous ruling (Stanford), that they were somehow sending a message to other state courts that they were also free to ignore precedent. However, in his dissent on Roper, Associate Justice Antonin Scalia, took strong exception to the fact that the majority failed to admonish the Missouri court "…for its flagrant disregard of our precedent in Stanford."

Furthermore, Scalia, arguably the most conservative justice on the U.S. Supreme Court, reinforced the idea that lower courts are bound by precedent stating that "it is this Court's prerogative alone to overrule one of its precedents." He concluded his dissent with the perspective that allowing lower courts to ignore precedent and leave the U.S. Supreme Court's decisions without any force "…destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos."

Given Scalia's strong affirmation of precedent in his Roper dissent, would Parker now paint Scalia with the same brush he has applied to his fellow justices on the Alabama Supreme Court? Would he also disparage Scalia as he has his fellow justices by claiming that his defense of upholding precedent is tantamount to surrendering his conservative credentials? Yet what the other eight justices on the Alabama Supreme Court did in the Adams case is exactly what Justice Scalia said they should do-they followed the precedent.

It is distressing to see a member of the Alabama Supreme Court undermine the decorum of the court by attacking the credibility of his fellow justices, all of whom can legitimately lay claim to solid credentials as conservatives and constructionists when it comes to abiding by and upholding the U.S. Constitution.

By writing the article, Parker himself demonstrated a lack of judicial restraint and that is no way for a member of the state's highest court to conduct himself. Furthermore, advocating that state courts should refuse to uphold the precedents of the U.S. Supreme Court is, as Associate Justice Scalia wrote in his Roper dissent, no way to run our legal system either.

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