Alablawg

Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Friday, March 03, 2006

Activist Judges

Here is an interesting article about Alabama Supreme Court Justice Parker. It provides some background to his amazing B'ham news editorial from a month or so ago. That editorial, you will recall, said Alabama's Supreme Court was under no obligation to follow the US Supreme Court's decision (Roper v. Simmons) declaring the death penalty unconstitutional for defendants who were juveniles when they committed the crimes.

In it he had this to say:

"State supreme court judges should not follow obviously wrong decisions simply because they are precedents. After all, a judge takes an oath to support the Constitution -- not to automatically follow activist judges who believe their own devolving standards of decency trump the text of the Constitution."

That is a great soundbite, but what does it really mean? In short, acceptance of this philosophy would mean a different Constitution for every judge in the country.

Here's why. First, the Constitution generally speaks in very broad language. For instance, the basis of Roper was the Eighth Amendment's prohibition of "cruel and unusual punishments." Would that prohibit impaling someone? How about quartering them? Or life without parole for stealing a pack of gum? Death for someone who committed a crime when they were eight? Twelve? Sixteen? You can see that Justice Parker's admonition to just follow "the text of the Constitution" does not answer these questions. The point is that this is an open ended provision, the proper application of which is a matter of reasonable dispute. It is naive to say a judge should simply follow the clear text of the Constitution. In most cases there is no clear text.

Second, because the Constitution uses open ended and broad language, determining how to apply that language requires judgment. The text is unclear, so something else must help to provide the answer.

Third, there are as many theories on how to exercise that judgment as there are judges. Some say the guide is the historical context of the particular provision at issue while others say it is history from then until now, still others say it is the current context. The point is that judges all have their own ideas about how to properly judge.

Finally, because every judge who considers the issue could come to a different conclusion, if, as Parker exhorts, judges ignore decisions they do not like, judicial anarchy would reign. Each judge would apply his own judgment to the issue and come up with his own conclusion.

To avoid this, someone has to have the final say so over the proper interpretation of the Constitution. Whether Justice Parker likes it or not, that someone is the United States Supreme Court. He may not like their interpretation, he may not think it is the best one. But if judges are free to disregard a Supreme Court decision just because they do not like it, then there will soon be as many Constitutions as there are judges.

That may not sound so bad, but think about it. Your freedoms would expand and contract as you crossed from one state into another. And in your own state they would change with every judicial election or appointment. Who could be free in such uncertainty?