Mimesis Law
20 July 2019

“You’re not the boss of me!”*

October 5, 2016 (Fault Lines) — While I have suggested that the Supreme Court “STFU,” Chief Justice Roy Moore of Alabama has openly defied the rulings of the Court while acting as a judge.  Judicial criticism of the Court is one thing.  Open defiance by a judge of the Court’s decisions is quite another matter.

Thoughtful judges in Alabama have made the point clear beyond any reasonable doubt. That is, every judge is bound to follow decisions by the Supreme Court of the United States:

Alabama Chief Justice Roy Moore was removed from the bench Friday for defying the U.S. Supreme Court on gay marriage, more than a decade after he was ousted for disobeying a federal order to take down a 2 ½-ton monument to the Ten Commandments.

The nine-member Alabama Court of the Judiciary suspended Moore for the remainder of his term. Although the court stopped short of outright removing him as they did in 2003, the punishment has the same effect, ending his period as Alabama’s top jurist.

The judiciary court ruled that Moore defied law already clearly settled by the high court’s Obergefell vs. Hodges ruling when he told Alabama’s probate judges six months later that they were still bound by a 2015 state court order to deny marriage licenses to gays and lesbians.

“Beyond question, at the time he issued the January 6, 2016, order, Chief Justice Roy Moore knew about Obergefell and its clear holding that the United States Constitution protects the right of same-sex couples to marry,” the court wrote in the unanimous decision.

They said Moore also flouted a federal judge’s order that enjoined the judges from enforcing Alabama’s same-sex marriage ban after the U.S. Supreme Court’s decision.

Kim Chandler, Alabama justice off bench for defying feds on gay marriage, Associated Press (October 1, 2016). (For the full text of the 50-page opinion, which I strongly suggest you read to appreciate, see In the Matter of Roy S. Moore,  Chief Justice, Supreme Court of Alabama (Alabama Court of the Judiciary, September 30, 2016).

Later Kopf Talks to Moore

Yes, Roy, the Justices are the boss of you and all the rest of us. But, I hear you muttering something. It sounds like,

“But that means we judges would have been bound to follow decisions like Dred Scott, Plessy and Korematsu.  What do you say about that Kopf?”

Bud, let’s just say it’s complicated. Leave it at that. Anything more, you wouldn’t understand.

Richard G. Kopf
Senior United States District Judge (NE)

*“You’re not the boss me” is part of a lyric for a great anthem sung by many (perhaps most) American middle school children (at least in spirit).

8 Comments on this post.

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  • SPM
    5 October 2016 at 12:21 pm - Reply

    It is not complicated. It is very simple. Either a judge is bound to follow the law and precedent in every circumstance, or a judge is free to do whatever they personally feel is best at that particular moment. There is no middle ground.

    Judge Pregerson, of the 9th Circuit, is known for his confirmation hearing statement – and his advice to other judges – that “if it comes between law and conscience, I will listen to conscience.” (Even a casual observer of the Supreme Court is aware that the SC is frustrated by the 9th Circuit’s failure to follow binding precedent.) At its core, the only difference between Pregerson and Moore is what they feel their conscience is telling them.

    And therein lies the problem. Suggesting that an inferior court need not feel bound (“it is complicated”) to follow “Dred Scott” is in essence no different from suggesting the same with a case like “Roe v Wade.”

    If you suggest that a court at any time has the freedom to “do what is right”, then you have to be willing to accept that someone else might have a different definition of “what is right.”

    • Richard G. Kopf
      5 October 2016 at 12:49 pm - Reply

      SPM,

      If the Supreme Court said that it was constitutional to impose the death penalty upon a person who was indisputably innocent but afforded all the process he was due before the innocence was discovered, would your view be the same?

      “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent,” Justice Scalia wrote in a 2009 dissent of the Court’s order for a federal trial court in Georgia to consider the case of death row inmate Troy Davis. “Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

      All the best.

      RGK

      • SPM
        6 October 2016 at 1:17 pm - Reply

        Judge Kopf:

        At its core, how is that any different from a judge making the determination that a baby is an independent human person from the moment of conception and that allowing an abortion is the “imposition of the death penalty on one who is indisputably innocent”? Thus a judge would certainly be justified in using every power of the court to prevent such an action.

        The problem with those who argue that there are occasions when a judge “must follow his conscience rather than the law” is that they implicitly (at least) restrict it to those occasions where the judge’s conscience agrees with their own. If the scenario where an “indisputably innocent person” is to be executed is an excuse for disobeying the law, then you must also accept that it might apply to the government-sanctioned killing of an innocent person (abortion), or the SC overstepping its authority with respect to the definition of marriage.

        If you want to argue that a judge should “follow his conscience”, then you must accept the possibility that his (or her) conscience might be different from your own.

  • Anon
    5 October 2016 at 12:51 pm - Reply

    But will they run him for President in 2020?

    If so, we may a constitutional crisis on our hands.

    That is, if the system is rigged as Mr. Trump says, and he is not elected this November.

    If the system is not rigged, President Trump may fill the Scalia vacancy with Judge Moore, thus avoiding the constitutional crisis altogether. It will then be a 5-4 majority of right thinking jurists.

    If that happen, then Justice Moore may yet become the boss of us all.

    So, keep an area clear for the genuine imitation marble tablet showing Moses coming down with the Ten Commandments, which you will no doubt be required to display in your courtroom. I mean, just in case. There is no telling where the country is going this year.

    • DaveL
      5 October 2016 at 2:40 pm - Reply

      I remind you that Obergefell was decided by a 9-member court. Scalia got his vote but was overruled. If he were replaced with someone who would vote as he did you’d just be back to the status quo ante. Trump would need to replace one of the liberal justices to get it overturned. I hear Ted Nugent always wanted to be a judge.

      • Anon
        5 October 2016 at 5:14 pm - Reply

        That’s very true, and didn’t give it full consideration. But right is right, and your right it wouldn’t make a difference. So we may very well be safe– for now.

        I like the idea of Ted Nugent becoming a judge though, hey, nothing says that only a lawyer can be appointed to SCOTUS. Ted Nugent isn’t a lawyer, is he? Anyway, it would make a great reality TV show, and maybe the Court would finally allow the cameras in with Ted on the Court. Reality television is an awesome and amazing qualification for high office nowadays.

  • bacchys
    5 October 2016 at 8:36 pm - Reply

    The supremacy clause says otherwise, and judicial review is very much in Art. III.

  • bacchys
    5 October 2016 at 8:37 pm - Reply

    If a lowly cop doesn’t have to listen to SCOTUS, why should an exalted judge?