March 9, 2006

TAKING BACK THE CONSTITUTION:

Alabama Judge Declares War on U.S. Supreme Court (Tony Mauro, 03-03-2006, Legal Times)

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." [...]

"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." [...]

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.


Just as the Court can grab power, the rest of America can grab it back.

Posted by Orrin Judd at March 9, 2006 12:01 AM
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