No friend to the federal courts.

Photographer: Gary Tramontina/Getty Images

Alabama Judge Preaches States' Rights, Till He Disagrees With His State

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Alabama's erstwhile chief justice, Roy Moore -- twice suspended now under investigation for flouting the commands of the federal courts -- is suing the Alabama Judicial Inquiry Commission ... in federal court. There might be a greater example of chutzpah in the history of judicial proceedings, but I can’t think of it.

The man who claims that the Alabama state courts have the authority to interpret the Constitution for themselves, ignoring the supremacy of the federal courts, is going over the heads of his judicial colleagues and challenging Alabama’s judicial ethics process in the alien federal system.

To make matters even more astonishing, Moore is a two-time loser in his one-man war against the judicial authority of the federal courts.  In 2003, he was removed from the elected post of state chief justice after refusing to obey a federal district court order to remove a 5,200-pound granite statue of the 10 Commandments that he had unilaterally ordered to the erected in front of the state supreme court building.

The federal court said the monument violated the establishment clause. Moore said he didn’t care what the federal court said. And Alabama’s special Court of the Judiciary said that the judge was violating his basic ethical responsibilities by defying a federal judicial order directed at him personally.

The latest round, and the subject of Moore’s lawsuit, derives from Moore’s guerrilla war to block the U.S. Supreme Court’s 2015 gay marriage decision, Obergefell v. Hodges, from applying in Alabama. In January 2016, Moore issued an order to Alabama probate judges, who administer marriage licenses, telling them to ignore the Supreme Court’s dictate until the Alabama Supreme Court told them to do otherwise. This violated the order of a federal district court telling the probate judges to issue marriage licenses to same-sex couples in accordance with the Obergefell decision.

Earlier in May, Alabama’s Judicial Inquiry Commission filed charges against Moore for this second act of defiance. In accordance with state rules, Moore was suspended from the chief justiceship while the case against him is pending. He will have a chance to defend himself before a special tribunal, after which -- I hope and expect -- he will be officially removed from office.

Now Moore is attempting to short-circuit that Alabama state process with an attack in federal district court. It's outrageous.

In essence, Moore’s campaign against gay marriage had one central legal thrust: that the federal courts shouldn’t be telling Alabama who could or could not marry in the state. The theme was states’ rights.

Moore’s states’ rights attack operated on a general level by asserting that states, not federal authorities, should define marriage. It operated on a concrete, specific level by insisting that the state courts should have authority comparable to that of the federal courts interpreting the U.S. Constitution.

One of Moore’s moves that didn’t get him formally in trouble was his claim that state courts aren't bound by a federal district court’s interpretation of the Constitution. I am skeptical of this view, but it remains the mainstream orthodoxy among scholars of federal courts. (The Supreme Court has never expressly adopted, it however.)

For someone with these views to ask a federal court to sit in judgment of a state process of judicial supervision that has its roots in the Alabama state constitution is to repudiate his entire judicial philosophy. If Moore doesn’t think the federal courts should be able to tell the Alabama Supreme Court what to do under the federal Constitution, how on earth can he ask a federal court to interfere with the Alabama courts’ application of their own state constitution?

To make matters worse, the lawsuit is embarrassingly weak in its constitutional content. Moore is using the classic civil rights statute, Section 1983, and asserting that his federal constitutional rights are being violated. He claims that the state of Alabama has violated his 14th Amendment rights by depriving him of his office without the due process of law.

Given that he’s facing trial before a tribunal and will have the opportunity to defend himself, how exactly, is Moore being denied due process? His argument is that his temporary suspension before the trial is unconstitutional. According to Moore, he should be able to remain as an active chief justice even while he’s being charged with ethical misconduct.

This is laughable, of course. When a judge is charged with misconduct, he or she can’t be deciding cases involving litigants. For one thing, if the judge is removed from office, all the cases decided during his or her trial would have to be vacated and reargued. 

The idea that there is a federal constitutional violation here is perhaps even sillier. Alabama’s judicial system is set up in the exercise of the state’s sovereign authority. It’s up to Alabamians to decide how they want to deal with bad judges -- not the federal courts. Notice that when Moore was removed in 2003, and again this time, it was the state of Alabama, not the federal government, seeking his removal.

The supremacy clause of the Constitution says that judges in state courts are bound by federal law and the federal Constitution. That’s the provision Moore has repeatedly violated in his embarrassing career.

His final embarrassment is that, when he’s on the ropes, he’s looking to the federal courts for salvation. It won’t be forthcoming.

  1. Moore is also complaining that the Judicial Inquiry Commission leaked his investigation to the press in violation of its own rules. But there's nothing federal about this claim, and even Moore’s complaint can’t come up with a way of suggesting there is.

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Noah Feldman at nfeldman7@bloomberg.net

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