Wednesday, January 04, 2006

Justice Tom Parker, Alabama Supreme Court

Dear Justice Tom Parker:

I write in response to your January 1, 2005 editorial in the Birmingham News. Let me see if I can break down your contorted logic:

(1) The U.S. Constitution doesn't say what the Supreme Court says it says.

(2) The U.S. Constitution says what you say it says.

(3) The Justices on the Alabama Supreme Court swore an oath to uphold the Constitution, and not simply to enforce judicial precedent.

(4) The Justices should therefore have voted as you would have voted.

(5) Any Justices who did not vote as you would are "judicial activists."

Allow me now to pause for a moment and emit a long, painful sigh. This is the sort of logic one has come to expect from politicos (and for the most part right-wingers) in their continuing assault on the judiciary: if you like the decision, the Constitution was upheld. If you don't, the judges were "activists."

I would have thought that someone on the bench would muster something with a little more analytical oomph. Your op-ed reads like something Tom DeLay would have written; indeed, it smacks rather of the sound and fury the indicted representative directed at Anthony Kennedy when the Justice visited Congress to discuss the Supreme Court's budget last summer.

And as sound and fury is wont to do, yours ultimately signifies nothing. Here's the kicker: the judicial activist in this sequence is you. You are the one who advocated for your court to disregard judicial precedent, in the hope of landing your case before a differently-composed Supreme Court that might overrule Roper. You are the one who dashed off an overtly political screed to a newspaper when your colleagues ruled in a way that offended your political sensibilities. You are the one calling for "active resistance" of the authority of the highest court in the land, for no other apparent reason than because it is staffed with people you believe are "liberals."

The mantra of the right these days is that America's judges need to "enforce the law" and not "legislate from the bench." The suggestion here is that a leftist judiciary is running hog-wild with the law. And yet here you are, unabashedly calling for a constitutional interpretation that, if your column is any indication, is not grounded in cogent legal analysis or even logic. The ruling you would have made has its source in your political opinions alone. Good show, Justice. Way to take a stand against "activism."

And you naturally fell into the trap of rearguing the Supreme Court's Ten Commandments jurisprudence, which does not reflect, as you suggest, a "foreign legal fad" so much as our Framers' determination that church and state remain separate -- walled off from one another, if I may paraphrase Thomas Jefferson, who many people in this country (including you, if I read your "Parker for Justice" website correctly) regard with a certain well-deserved reverence.

But then again, maybe you do make a point there, if only accidentally. After all, Jefferson's political views derived from the writings of Enlightenment thinkers, many of whom came (gasp!) from France. I should say the "foreign legal fads" of liberty, equality, and dignity under the law have served us rather well over the last 200+ years.

Of course, there has been resistance to the advancement of these ideals. When the Supreme Court struck down Jim Crow laws and ordered an end to racial segregation, many state officials cried foul and "actively resisted" these scandalous pronouncements of the Court. No doubt certain purported jurists claimed that the justices who wrote these opinions were too "liberal," that they were misreading the Constitution, that they were tyrants imposing an unwanted ideology (of liberty, equality, and dignity) on the citizenry. A half-century later, it is abundantly clear who was on the right and wrong side of history.

I suspect that fifty years from now, your op-ed will be an interesting cultural artifact. A law student might come across it in his research and think, "Can you believe that a JUDGE actually wrote something like this in the year 2006?" Heck, I'm asking that question right now.