The Corner

Law & the Courts

Roy Moore Is Not the Cure for Judicial Supremacy

One of the arguments made by serious conservatives in favor of Roy Moore — at least before his campaign was consumed by stories of sexual impropriety — has been that Moore is an enemy of judicial supremacy. While I’m sympathetic to the cause, Moore was never a good messenger for it.

Even aside from the substance of Moore’s political beliefs (such as they are), the central defining fact of his political career has been his refusal as a state judge to abide by federal court orders. Moore was popularly elected to six-year terms as chief justice of the Alabama Supreme Court in 2000 and again in 2012, and he was forced out of office halfway through each term (the second time, he resigned just ahead of being forcibly removed). In the first case, it was over a federal court order to remove a Ten Commandments monument in his courtroom, on the dubious but decided-by-federal-courts legal theory that this was the equivalent of the state establishing its own church. In the second, it was over Moore’s refusal to comply with the even more dubious but decided-by-federal-courts legal theory that the due-process clause requires states to recognize same-sex marriages.

Regardless of the legal preposterousness of the federal court orders, Moore was bound by the supremacy clause, which plainly requires state courts to follow federal court interpretations of the U.S. Constitution, federal law, and their interaction with state law. The Supreme Court concluded in 1816 that federal courts have this authority, and Moore stands practically alone over the past half-century (at least) in contesting it. As Jonathan Adler explains, Justice Story’s reasoning in Martin v. Hunter’s Lessee is compelling, Moore’s lone effort to contest it 200 years later is as short on logic and history as it is on supporters:

Story’s argument was not based upon any claim that federal judges are wiser or more likely to reach the correct result than state judges. Accepting “the most sincere respect for state tribunals,” he explained that the “necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the Constitution” was the reason why federal court decisions must be able to bind state officers, judges included. Indeed, this was the whole point of having a federal judiciary in the first place.

Our federal system readily accommodates differences in state laws. It is one of its virtues. Different parts of the country can adopt and enforce those laws that are most in line with local preferences. Federal law, however, is of a different nature. When laws are enacted by Congress, they are the “supreme law of the land”—and a law can hardly be “supreme” if it means something different in different places.

Moore’s hairsplitting defense that the Obergefell decision on same-sex marriage had not ruled on the Alabama constitution’s prohibition was baldly frivolous, given that the decision had addressed popularly enacted state constitutional bans enacted in Kentucky, Michigan, Tennessee, and Ohio, without even examining distinctions in what they said or how they were enacted; no possible legal reasoning could distinguish Alabama’s rule. The only basis for Moore’s refusal to follow Obergefell is if Hunter’s Lessee was itself wrong.

The more honest pro-Moore response to this is that Moore, unlike nearly everyone else in the Republican party and the conservative movement, was at least trying to do something about judicial supremacy. That’s a real problem, so one worth exploring.

Judicial supremacy is the view that a federal court can say or do literally anything, at least where constitutional law is concerned, and none of the other branches of the federal or state governments — even up to the president and the Congress — can do anything but submit. Under this view of American government, if a federal court rules that the Constitution says the Earth is flat, the other branches must meekly comply unless they can appeal to another federal court or prove that the judge can be removed for office on grounds of being corrupt. That may sound extreme, but in practice it’s the governing ideology of our legal system and essentially all its participants.

In terms of its reasoning, what Supreme Court did in Obergefell — as in Roe v. Wade — was every bit as lawless as anything Roy Moore has ever done. Nobody would seriously argue that the due-process clause in the Fourteenth Amendment was intended or understood, when enacted by the people’s representatives in 1868, to make the marriage laws of every state over all of American history to date unconstitutional. The Obergefell majority did not even pretend to argue so, or even address the meaning of the text it interpreted. The majority felt that it was doing Right, so text of law and consent of the voters be damned. The worst nightmare of how Roy Moore would act with unchecked power to issue social-policy edicts is that he would act as the Obergefell majority did. Liberals who gloried in the ability to exercise that power without any possibility of restraint should consider how they should like it to be restrained in the hands of a man like Moore.

Judicial supremacy is a serious problem, especially if you think of judges as inherently political actors, and thus believe that their decisions should not be treated as if they were literally the Word of God. But whatever its best solution, Judge Moore’s approach was the wrong one, and very properly ended with him becoming ex-judge Moore. The legitimacy of any act of government in America comes down to one simple question: Who decides? Moore wasn’t given the power to decide that whatever he wants to be the law, is the law — at least not as far as federal law goes. A state judge doesn’t get to decide what federal law is, once federal courts have decided otherwise. The answer to the rule of judges is not to empower different judges, even ones (like Moore) elected by the people to roles explicitly subservient to the federal courts.

Moore’s conduct as a state judge rendered him wholly unfit for any judicial or executive post in the future. I don’t necessarily think that — by itself — it was an absolute disqualifier for a legislative position (in any event, it’s hardly the only case against Moore as a senator at this point), but it is certainly no argument in his favor.

Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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