Judge Wants Justices Denied

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Judge Wants Justices Denied

In Op-Ed, Alabama Jurist Slams 'Activists,' Calls for Resistance of U.S. High Court Ruling

By Stephanie Francis Ward, American Bar Association eReport, January 13, 2006

An Alabama Supreme Court judge disagrees with a landmark U.S. Supreme Court decision that held death sentences for juveniles amounted to cruel and unusual punishment.

So he wrote an opinion piece in a Birmingham newspaper arguing that his state judicial colleagues should "actively resist" the ruling, a position that some critics have likened to nullification.

At the very least, Judge Tom Parker's Jan. 1 essay in the Birmingham News continues the ongoing national debate over what exactly constitutes judicial activism.

In the piece, Parker criticized the majority in Roper v. Simmons, 543 U.S. 551 (2005), as "liberal activists on the U.S. Supreme Court." The ruling, written by Justice Anthony M. Kennedy-and joined by Justices Ruth Bader Ginsburg, David H. Souter, John Paul Stevens and Stephen G. Breyer-held that social norms had changed, and that most Americans now disapprove of sentencing juveniles to death. Also, they cited an "overwhelming" global opinion that a juvenile death penalty is wrong.

Parker's piece centers on Renaldo Adams, who at 17 was convicted of raping and murdering a pregnant woman. After Roper, the Alabama Supreme Court last March commuted Adams' sentence to life in prison without the possibility of parole.

"The proper response to such blatant judicial tyranny would have been for the Alabama Supreme Court to decline to follow Roper in the Adams case," Parker wrote. "By keeping Adams on death row, our supreme court would have defended both the U.S. Constitution and Alabama law."

A former Alabama assistant attorney general, Parker assisted in Adams' prosecution and recused himself from the appeal. That, he wrote in an e-mail to the eReport, is why he contacted the newspaper about writing the opinion piece. He says under the Alabama Canons of Judicial Ethics, as well as the oath he took as a judge, writing the article was his duty.

"I would have preferred to have been able to reason with my colleagues privately on this matter, and, if that failed, express my support of the Constitution in a dissenting opinion," Parker said in his e-mail. "As I had to recuse myself in this case, however, I could not even discuss the case with my colleagues, so the other option I had to keep my oath and follow the canons was a public expression of my opinion after the case was over."

However, some have chided Parker for criticizing activist judges while suggesting that his colleagues spurn U.S. Supreme Court precedent. They cite Canon 2 of the state judicial code, which holds that a judge should "respect and comply with the law" and at all times conduct himself in a manner that promotes public confidence in the judiciary's integrity and impartiality.

"He's daring someone to file a judicial inquiry complaint," says Joseph Van Heest, president of the Alabama Criminal Defense Lawyers Association. Rosa Davis, an Alabama chief assistant attorney general assigned to represent the state's Judicial Inquiry Commission, says the agency never comments on whether a complaint has been filed. Alabama Chief Justice Drayton Nabers Jr. would not comment on Parker's article.

According to Van Heest, who practices in Montgomery, it's likely that Alabama defense lawyers will ask Parker to recuse himself from future capital cases. Van Heest adds that Parker was an associate of Roy Moore, the former Alabama chief justice who insisted that the courthouse display a monument of the Ten Commandments. Ultimately, the state's judicial ethics panel removed Moore from office because he would not obey a federal court order to remove the monument.

Parker says that, as chief judge, Moore had appointed him to serve as deputy director of the Administrative Office of the Courts. Parker also says he handled public relations for the judges after the public information officer resigned because there were no funds to hire a new one.

Moore in October announced a run for governor, and it has been mentioned in the legal community that Parker plans to run for the chief justice seat. Van Heest wonders if Parker's piece in the Birmingham News is a campaign kickoff.

"Not only does he attack his own court, I think very unwisely, he uses old language that can only be attributed to someone who's running for election on the fringes," Van Heest says. He mentions a portion of Parker's piece that refers to the state's "pro-family policies, Southern heritage, evangelical Christianity and other blessings of our great state."

Parker would not confirm or deny a run for the state's chief justice seat. He did state that his opinion piece violated no state judicial canons.

"Exactly the opposite is true," he wrote. "Public confidence in the judiciary will only be restored by many more judges like myself actively resisting rather than passively accommodating judicial activism."

Charges of judicial activism are increasingly common, but it's rare to see judges making the criticism, says John W. Winkle III, a political science professor at the University of Mississippi. He says Parker's piece is reminiscent of the writings of John C. Calhoun, the 19th century South Carolina politician who argued states could declare void any federal law they found unconstitutional.

In response, Parker says his article was not about nullification. Instead, he maintains that with a changing U.S. Supreme Court, the body should be given the opportunity to readdress the issue, "until it gets it right according to the text of the Constitution rather than foreign legal fads."

"Perhaps there's some seedbed in the south for resistance against federal actions," Winkle says. "I feel relatively certain that his view will resonate with a portion of the Alabama electorate, but not with the majority. And I do not believe this will play particularly well with the bench and bar of Alabama."

Others didn't see Parker's action as judicial activism. Writing the piece was bold, says John C. Eastman, a professor at Chapman University School of Law in Orange, Calif., but it didn't amount to nullification. "The case is no longer pending, it's been decided, and he wasn't a member of the court that decided it," Eastman says. Eastman adds that when Justice Antonin Scalia spoke at the law school this summer, he discussed activist judges, mentioning Roper and Lawrence v. Texas, the 2003 ruling that found sodomy laws unconstitutional. "I think the subject of what [Parker is] saying is so profoundly important that I'm glad he's doing it," Eastman says. "The notion that nobody can question Supreme Court pronouncements is not very well-grounded, and it could amount to judicial tyranny." Others fear that Parker's article will be harmful and reach audiences outside of Alabama. "The way the arguments are expressed, they're so broad, so sharp and so critical, I think they will have some effect of undermining the public's confidence of the judiciary as a whole," says Thomas M. Keck, an assistant professor at Syracuse University's Maxwell School of Citizenship and Public Affairs. "He writes that what Alabama judges are doing is imposing their will, rather than applying the law," Keck adds. "That is a misinterpretation that is bad for judges everywhere."

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