7/24/2019 A Defense of Judge Roy Moore and the Alabama Supreme Court

1/3

www.claremont.org ! 1317 W. Foothill Blvd., Suite 120, Upland, CA 91786 ! P: (877) 855-3330

Federal Court Precedent: A Defense of Judge Roy Moore and the

Alabama Supreme Court

Alabama Supreme Court Chief Justice Roy Moore made news last month when he ordered probatejudges in Alabama under his judicial supervision not to issue marriage licenses to same-sex couples,even though a federal district judge had held the law defining marriage as a union between a man anda woman to be unconstitutional. Howls of lawlessness went up in the corridors of the nations elites.Those cries will undoubtedly grow even louder now that the entire Alabama Supreme Court has issueda 7-1 ruling ratifying Chief Justice Moores stance.

Our nations elites have convinced themselves that a judicial order by a single federal court trial judge,

no matter how wrong or contrary to existing precedent, is the law of the land and must be followedunquestioningly. Some even compared Chief Justice Moores actions to those of the late GovernorGeorge Wallace standing defiantly in a schoolhouse door to block implementation of the US SupremeCourts desegregation decision. The ghost of the late Justice Charles Evans Hughes, who infamouslysaid that We are under a Constitution, but the Constitution is what the judges say it is, is undoubtedlysmiling.

We have come to expect such claims of unfettered judicial supremacy from the left, but Chief JusticeMoore and his fellow justices on the Alabama Supreme Court have by far the better argument.

Our State and Federal Judicial Systems

First, a couple of basic facts. There are two judicial systems in this country, not one. Federal courtsexist side by side with state courts, and both have a duty to follow the US Constitution. Indeed, asArticle VI of the Constitution makes clear, All . . . judicial Officers, both of the United States and ofthe several States, shall be bound by Oath or Affirmation, to support this Constitution. Decisions ofthe lower federal courtswhat the Constitution calls inferior courtsare not binding on the statecourts. If the lower federal courts in a state interpret the Constitution in a way that conflicts with theinterpretation adopted by the state courts, neither decision has binding effect on the other.

The US Supreme Court has held that A decision of a federal district court judge is not bindingprecedent in either a different judicial district, the same judicial district, or even upon the same judgein a different case. Only the Supreme Court of the United States, which sits at the pinnacle of bothjudicial systems, can resolve such conflicts.

Second, it is important to note that the federal court order at issue was entered by a single federal trialcourt judge, who serves on the US District Court for the Southern District of Alabama, one of threefederal district courts in Alabama. That court has jurisdiction over only thirteen of Alabamas sixty-seven counties.

While a federal district court order declaring a state law unconstitutional and enjoining its enforcementcan have statewide effect if there is a statewide official involved in the case before the court, that order

7/24/2019 A Defense of Judge Roy Moore and the Alabama Supreme Court

2/3

page 2

can only bind the defendants named in the suit, their officers and agents, and other persons who arein active concert or participation with them, as specified in the Federal Rules of Civil Procedure. Theorder cannot bind people not before the court or acting in concert with them.

Under Alabama law, probate judgeswho are responsible for issuing marriage licenses in Alabamaare judicial, not executive officers, and are entirely independent of the executive branch of

government. Therefore, the order issued to the Attorney General of Alabama did not and could notbindprobate judges.

Plaintiffs in the case soon recognized this problem. After the controversy over Chief Justice Mooresdirective erupted, they quickly filed a post-hoc amendment of their complaint to name the MobileCounty probate judge. Within twenty-four hours, the federal district judge revised her order to coverthat individual as well. Of course, the very fact that plaintiffs needed to make such an amendment wasan admission that probate judges were not bound by the prior order. It is also an implied admissionthat Alabamas probate judgesincluding those in the other twelve counties within the SouthernDistrictare even now not bound by the order in litigation to which they are not parties. Its also a prettyclear admission that this particular federal court judge would have no jurisdiction to extend her order

to probate judges in the other fifty-four counties in the state that are outside the boundaries of theSouthern District.

Hierarchy and Judicial Authority

Those are basic issues of federal court jurisdiction, and Chief Justice Moore is absolutely correct inhis reliance on them. But there is an even more fundamental issue of precedential authority in ourjudicial system at stake in this case. Not only are there two parallel court systems, but those systemsare both hierarchical in nature. That means that the lower courts in each system are bound by existingprecedent of higher courts in their respective systems, with the US Supreme Court sitting atop both. Inother words, both the lowerfederal courts and the statecourts (even including state supreme courts)are bound by decisions of the US Supreme Court.

The big irony for those accusing Chief Justice Moore and his fellow justices of ignoring the allegedlybinding effect of the lower federal court order is that the lower federal court itself refused to followUS Supreme Court precedentprecedent that is as binding on that lower federal court as it is onAlabama Supreme Court and Alabama county probate judges.

In 1972, the US Supreme Court upheld a decision by the Minnesota Supreme Court holding that astates man-woman marriage law was not unconstitutional. That decision, Bakerv. Nelson, is bindingon the lower courts, both federal and state, even though it was only a summary disposition. Many inthe legal academy, and many lower federal courts, believe that the Supreme Court will itself not adhereto that decision when it rules later this year on the marriage cases from Ohio, Michigan, Kentucky,and Tennessee, because subsequent doctrinal developments have, in their view, undermined the

precedential value of Baker. But a belief in what the Supreme Court might dois not a basis for issuinga decision contrary to the existing precedent.

As the Supreme Court has itself made clear, the lower courts are bound by summary decisions by[the Supreme] Court until such time as the Court informs [them] that [they] are not. This is trueeven if more recent Supreme Court cases appear to undermine the reasoning of the precedent: If aprecedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasonsrejected in some other line of decisions, the Court of Appeals should follow the case which directly

7/24/2019 A Defense of Judge Roy Moore and the Alabama Supreme Court

3/3

page 3

controls, leaving to [the Supreme] Court the prerogative of over-ruling its own decisions.

In other words, the ethical considerations that led some to chastise Chief Justice Moore weremisdirected. It is federal district judge Callie Granade who acted lawlessly by failing to follow existingSupreme Court precedent that remains binding on her. Indeed, were Chief Justice Moore to followGranades order, he would be violating his duty to comply with the binding authority of the Supreme

Court, in deference to a lawless order by a single federal trial court judge. In a well-reasoned andlengthy opinion adopted by a 7-1 vote, the Alabama Supreme Court has concluded just that.

What If the Supreme Court Redefines Marriage?

It is important to note what is notat issue in this controversy, at least not yet. That is whether publicofficials will be bound by a decision of the US Supreme Court wrongly interpreting the Constitutionto mandate a nationwide redefinition of marriage.

The oath that all public officials take, whether they be legislators, executives, or judges, is to adhere tothe Constitution. Of course, the courts have to interpret the Constitution. Yet the very same judicialopinion that famously established the principle of judicial review, Marburyv. Madison, argued strongly

and persuasively that the Constitution was above every branch, including the judiciary. PresidentThomas Jefferson quite rightly expressed grave concerns about an interpretation of Marbury thatmoved beyond judicial interpretation to judicial supremacy, noting that To consider the judges as theultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one whichwould place us under the despotism of an oligarchy.

In response to the Supreme Courts egregiously wrong interpretation of the Constitution in Dred Scottv. Sanford, Abraham Lincoln famously, and quite correctly, made the following statement in his FirstInaugural Address:

the candid citizen must confess that if the policy of the Government upon vital questionsaffecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, theinstant they are made in ordinary litigation between parties, in personal actions, the people willhave ceased to be their own rulers, having to that extent practically resigned their Governmentinto the hands of that eminent tribunal.

If the Supreme Court rules later this year that a constitutional provision adopted in 1868 mandates aredefinition of marriage in all fifty states, that will be the time for public officials throughout the landto determine whether they have the fortitude of a Lincoln or whether we have now reached the pointwhere the people have ceased to be their own rulers. But the Alabama Supreme Courts rulingdirecting state officials to cease issuing illegal marriage licenses to same-sex couples complies withexisting Supreme Court precedent. It is the unlawful order of an inferior court that does not followthat binding precedent.

Article Originally Published by Public Discourse on March 16, 2015

http://www.thepublicdiscourse.com/2015/03/14627/