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Friday, January 13, 2006

Conservative Criticizes Parker's Criticism

My post last week on Tom Parker's op-ed rebuking his fellow members of the all GOP State Supreme Court seemed to engage readers on both sides of the issue. So to stick with the story and present both sides of the coin, I thought I'd mention Gary Palmer's column critically deconstructing Parker's op-ed.

If you're not familiar with the issues involved here, check out my initial piece for a brief background.

Gary Palmer is the president of the Alabama Policy Institute , a conservative think tank. Palmer and Parker actually agree that US Supreme Court Case in question was wrongly decided, but the two have starkly different expectations of how the Alabama Supreme Court should have responded. Palmer not only takes aim at Parker's legal reasoning but also takes Parker to task on a personal level.

To my untrained legal eye, Palmer's argument against Parker's fundamental reasoning is contained with this statement:

While Parker is correct that Roper is another example of judicial activism, the decision by his colleagues to abide by the higher court's ruling does not constitute a failure to defend the U.S. Constitution nor is it passive accommodation of judicial activism. The other eight justices were in fact upholding the rule of law because all judges are bound by precedent.

Conservative judicial activism is no more acceptable than liberal judicial activism because in the end both lead to an undermining of the public respect and trust of the law. Consequently, by advocating that conservative judges engage in judicial activism by refusing to uphold the precedents of the U.S. Supreme Court, Parker himself fails the test of judicial restraint.
Palmer is also critical of the manner in which Parker made his disagreements known.

It is distressing to see a member of the Alabama Supreme Court undermine the decorum of the court by attacking the credibility of his fellow justices, all of whom can legitimately lay claim to solid credentials as conservatives and constructionists when it comes to abiding by and upholding the U.S. Constitution.

By writing the article, Parker himself demonstrated a lack of judicial restraint and that is no way for a member of the state's highest court to conduct himself.
One other thing I found interesting was Palmer's identification of the governor and attorney general (not the state supreme court) as the officials with the standing and authority to fight "activist decisions" from the Supremes. Palmer's argument is sensible, but I bet Bob Riley and Troy King would rather sit this one out than engage in the conservative hand-to-hand combat now taking place surrounding the state's judiciary. If Parker and his allies were convinced by Palmer's logic, they would simply turn their guns on Riley and King.

Be sure to read Palmer's piece, though for a more complete window into this compelling legal debate.

Parker's unconventional manner and unorthodox judicial philosophy are certainly ruffling feathers among some in the conservative legal community. However, unlike many intellectual and legal debates that bypass the average citizen, Alabama voters will have a chance to weigh in on these weighty matters in the June primary and the November general election.

143 Comments:

Anonymous Watchingu said...

Ah, so Stepin Fetchit is at it again. Palmer is the Establishment's favorite "conservative" and can always be relied on to endorse a liberal when the Man needs him. If I recall correctly, Stepin backed Blount over James, See over Moore and Brown over Parker so it's no surprise he's at it again, doing his song and dance routine for the Dexter Avenue crowd. "Throw the boy a quarter, and watch him do a dance for us."

7:41:00 AM  
Anonymous SouthernLawyer said...

Zac's "untrained legal eye" is pretty sharp. The legal side of this dispute can be understood as a fundamental difference in how one understands the "rule of law."

When Palmer said that "The other eight justices were in fact upholding the rule of law because all judges are bound by precedent" he was expressing support for the relatively recent doctrine of judicial supremacy.

This doctrine, first asserted in the 1958 case of Cooper v. Aaron without any textual or historic authority offered in support, holds that the United States Supreme Court alone may interpret the Constitution and that its interpretations are binding on every other court and every other branch of government.

Justice Parker, by contrast, stands for the classical view that for the rule of law to mean anything, it must bind everyone, including U.S. Supreme Court justices. As John Marshall wrote in the famous Marbury v. Madison case in 1803:

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

The liberal majority of today's U.S. Supreme Court no longer believes that it is bound by the written text of U.S. Constitution. Instead, it says, "The Constitution means whatever we say it means."

That's why I think Justice Parker has the more persuasive case when his says that the approach advocated by Palmer is actually the rule of men, not the rule of law.

8:23:00 AM  
Anonymous SouthernLawyer said...

After reading the clear excerpt from Marbury, some of you may wonder how the contrary view Palmer advocates ever came to be so widespread.

I suspect much of the blame lies with a certain Harvard Law School professor, Larry Tribe. Prof. Tribe is a well-known, hard-left political activist who has long advocated judicial supremacy.

He also happens to be the author of the most influential casebook on Constitutional Law, which has shaped the perspectives of literally a majority of law school students for decades.

The reason this is significant is that Prof. Tribe's casebook version of the Marbury opinion omitted (and may still do so) the text that states that courts, no less than the other branches, are bound by the text of the Constitution.

Consequently, generations of young lawyers have been taught an understanding of judicial review biased in favor of judicial supremacy.

No wonder even state supreme court justices, like Justice Parker's colleagues, can be mistaken on this issue.

8:49:00 AM  
Anonymous Anonymous said...

There has been this myth that Moore's followers have promulgated about what Marbury v. Madison stands for. There is no question that federal courts, like other branches of government, fall under and must abide by the Constitution. That's not a controversial position.

Marbury v. Madison's real imapct is in addressing the question of WHO has the power to interpret all the rights, powers and duties that arise from the Constitution. In that case, John Marshall made clear to President Jefferson that the U. S. Supreme Court -- and not the Executive branch -- has this authority.

Cooper v. Aaron extends this doctrine so that the states, just like the President, must recognize the federal courts as the final authority in interpreting what the Constitution says.

Those who oppose this system have failed to present a workable alternative. We can't give authority to every officeholder to decide for himself what his duties and powers are under the Constitution. That is the path to anarchy.

So let me ask those who support Moore and Parker: if you want to divest the federal courts of the power to decide what our Cosntitutional rights and duties are, to whom would you give that power? And how would such a system work?

10:13:00 AM  
Anonymous Anonymous said...

Harold See a "liberal?" Jean Brown a "liberal?" Man, what are you smoking? These are arch-conservative justices who for the past few years have been screwing over plaintiffs in just about every case that's come before the Ala. Supreme Court.

10:32:00 AM  
Anonymous BetterSouthernLawyer said...

Here we go again: It is simply untrue that the concept of the Supreme Court's authority to interpret the Constitution was invented in 1958 in Cooper v. Aaron. In 1803, Chief Justice Marshall, speaking for a unanimous Court, referred to the Constitution as "the fundamental and paramount law of the nation," and declared that "It is emphatically the province and duty of the judicial department to say what the law is." Sure, the courts are bound by the Constitution. Nobody (except maybe Tom Parker) disputes that. The question is who has the final word on what the Constitution means. For more than two centuries, it has unquestionably been the U.S. Supreme Court. Quit trying to re-write history.

11:17:00 AM  
Anonymous Anonymous said...

The U.S. Supreme Court does not have the authority under the United States Constitution to "extend" its power in the way the poster above claims occurred in Cooper. That is usurpation.

I think the poster above knows that full well, which is why he changes the argument from one of principle to one of pragmatism -- that is, he cannot imagine a "workable" alternative. In so doing, he shows that his ultimate principle is pragmatism -- of a centralized, socialist sort in which everything is smooth because it is managed entirely from the top.

This view of government was anathema to our Founding Fathers, who established a federal system, with multiple governments at the state level and strict limitations on the federal power. Critics in those days probably also claimed the arrangement would promote anarchy and be inefficient.

But they, like the poster above, miss the point: the goal of our Founders was to limit state power by dividing it up, to better preserve the inalienable, God-given rights of the people. That's not "anarchy" -- it's freedom from the bondage of concentrated power.

11:21:00 AM  
Anonymous Anonymous said...

So, come on, answer the question: If not the Supreme Court, who has the final say on Consitutional questions? If Congress passes a law banning gay marriage, it gets challenged as unconstitutional, but is upheld by the Supreme Court, does every state and local official around the country get to decide for themselves whether they think its constitutional, or are they bound by the federals?

11:28:00 AM  
Anonymous Posner said...

Thank you Alabama Policy Institute for your Law & Economics views. Law and Religion are a poisonous mix. But, if the poison goes bad, does that mean its good for you?
clearly Moore, Parker and other miscreants think so.

11:33:00 AM  
Anonymous Anonymous said...

The U.S. Supreme Court does not have the authority under the United States Constitution to "extend" its power in the way the poster above claims occurred in Cooper. That is usurpation.

That's what you say. Beggin' pardon, but who the hell are you? Cooper remains binding precedent of the United States Supreme Court, having never been overruled,and we can't simply disregard it because we don't like it. If you think otherwise, then you buy into the nullification/interposition doctrine. C'mon, admit it -- you are in that camp, aren't you?

12:27:00 PM  
Anonymous Anonymous said...

Since Cooper v. Aaron is apparently the chief target of the Moore/Parker faction now, it might be helpful to recall what that case was about. To that end, here are some passages of the Cooper decision.

It starts as follows:
"As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions."

Later on, the Court recognized the factual backdrop, "indisputably revealed by the record before us, that the conditions they depict are directly traceable to the actions of legislators and executive officials of the State of Arkansas, taken in their official capacities, which reflect their own determination to resist this Court's decision in the Brown case and which have brought about violent resistance to that decision in Arkansas. In its petition for certiorari filed in this Court, the School Board itself describes the situation in this language: ‘The legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements villifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.'"

The following extended passage from Cooper goes to the crux of this dispute:
"In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously.' Smith v. Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 166, 85 L.Ed. 84.

"What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

"Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.' In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as ‘the fundamental and paramount law of the nation,' declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, that ‘It is emphatically the province and duty of the judicial department to say what the law is.' This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'

"Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, ¶3 ‘to support this Constitution.' Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' ‘anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State. * * *' Ableman v. Booth, 21 How. 506, 524, 16 L.Ed. 169.

"No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: ‘If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery * * *.' United States v. Peters, 5 Cranch 115, 136, 3 L.Ed. 53. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, ‘it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases * * *.' Sterling v. Constantin, 287 U.S. 378, 397-398, 53 S.Ct. 190, 195, 77 L.Ed. 375."

1:16:00 PM  
Anonymous UncleJack said...

There's a big difference. Brown was 9-0. Roper was 5-4.

1:28:00 PM  
Anonymous Anonymous said...

That is absolutely and completely irrelevent!

1:32:00 PM  
Anonymous unclejack said...

There is a good chance this decision will be overruled. There was no such chance with Brown. As Alito pointed out, the Supremes have overturned 170 prior decisions. Any rational mind would accept that this decision stands a reasonable chance of joining that list.

1:33:00 PM  
Anonymous Anonymous said...

Unclejack, you are attempting to change the argument. We're not talking Roper -- we're talking about Cooper v. Aaron, the validity of which some have questioned. With Cooper standing as good law, the Alabama courts must follow the Roper decision, regardless of whether it was 5-4 or 9-0.

1:43:00 PM  
Anonymous Anonymous said...

The bottom line is that the Supreme Court is God for all intents and purposes in our government. They have the final authority. They decide what ultimately is law. They decide what the constitution says. If they want gay marriage in the constitution-- it's there. If they want to cite foreign law, they can do that, too.

You whackos who support Parker and Moore don't understand authority. The Supreme Court has the power. If you don't like it, get control of the court and then have your own fun playing God.

1:46:00 PM  
Anonymous UncleJack said...

No one was saying defy the law, all Parker is saying is challenge it. With a 5-4 ruling based on Swedish law there is a good chance that the Supremes will overrule it, and if not, then their decision is final. Parker is not suggesting Alabama officials fry the creep anyway, he said our court should have challenged the ruling once again. Instead, they let this human vermin live and risk him killing again.

The death penalty may not stop murder but it will always stop the murderer. Dead men can't kill again.

1:53:00 PM  
Anonymous Anonymous said...

No one was saying defy the law, all Parker is saying is challenge it. With a 5-4 ruling based on Swedish law there is a good chance that the Supremes will overrule it, and if not, then their decision is final.

Unclejack, you're missing the point. The Roper decision IS final. Its the law, and we must all follow it. Your distinction between defiance and challenging the decision doesn't hold water. To "challenge" the decision necessarily means to consciously ignore and defy the ruling in the hopes that it will provide a more conservative U.S. Supreme Court with the chance of overturning Roper.

Maybe one day Roper does get overturned. Fine. WHEN AND IF that day comes, then we can all throw the decision in the garbage can. Until then, it's the law.

2:09:00 PM  
Anonymous Anonymous said...

You say "The Supreme Court is the final authority."

I say, "Says who?"

You say, "The Supreme Court."

I say, "Why should we believe them?"

You say, "Because there is no other workable solution."

Okay. Then I say Mickey Mouse is the final authority.

You say "Says who?"

I say, "Because Mickey says so."

You say, "Why should I believe him?"

I say, "Because he will make all your dreams come true."

2:13:00 PM  
Anonymous Unclejack said...

I'll bet this Roper supporter can also tell us what Bill Clinton meant when he was talking about what the meaning of "is" is.

2:36:00 PM  
Anonymous Anonymous said...

Well, unclejack, since you bring up Bubba Clinton, let me ask you Parker supporters a question.

If your view of the world is right, then every constitutional officeholder (in other words, every official who takes an oath to uphold and defend the Constitution) had the power to decide for himself what our rights and duties are under the Constitution. Would you have been comfortable having Bill Clinton, as President, take such a position? What if Hillary is elected? Would you be comfortable if she argued that she has the power to decide what constitutional limitations, if any, there are on the Executive Branch?

2:51:00 PM  
Anonymous Scott T. Whiteman said...

Conservative judicial activism is no more acceptable than liberal judicial activism because in the end both lead to an undermining of the public respect and trust of the law. Consequently, by advocating that conservative judges engage in judicial activism by refusing to uphold the precedents of the U.S. Supreme Court, Parker himself fails the test of judicial restraint. Palmer.

Palmer clearly misses this simple, Common Law point: “Even in such cases the subsequent judges do not pretend to make new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, and has been erroneously determined.” Blackstone’s Commentaries at 70.

2:56:00 PM  
Anonymous Parker4ChiefJustice said...

Please, let's give Tom Parker his due. As with all good Republicans, he knows that the best defense is often found in distraction. His article successfully changed the subject. Now everyone is talking about what a moron he is, instead of talking about the fact that he hasn't done a lick of work in the year since he took office. Atta boy, Tom.

2:57:00 PM  
Anonymous Anonymous said...

Yeah, Uncle Jack, you've been sippin too much of your own brand.

The Supreme Court must be the final judge or we'd have Tom Parkers all over the country.

If it means the Supreme Court becomes a defacto dictatorship then so be it. It's better than a mobocracy.

3:01:00 PM  
Anonymous Anonymous said...

If Tom Parker is a "conservative," then why does he get so much money from the plaintiffs' trial lawyers?

3:03:00 PM  
Anonymous Anonymous said...

Those who support the notion of judicial supremacy will apparently go along with any pronouncement of a U.S. Supreme Court majority as long as it is couched in sufficient legal jargon and there is some claim of a connection to the Constitution...

It doesn't matter if the subject matter has nothing remotely to do with the text of the Constitution; that's okay, you just have to lie there and take it. In fact, if you're really smart, you'll even find some way to enjoy it.

But most of you out there are just too stupid to get it:

Can't find a right to murder your own pre-born children in the Constitution -- even reading between the lines? Haven't you heard of penumbras and emanations? No? You must have gone to some school in the wrong part of the country.

Can't find a right to anal sex in the Constitution? Can't find either "anal" or "sex" in the Constitution? You simpleton! You must live in a backward Southern state where they don't read Derrida and Foucault -- otherwise, you would understand that anal sex is the highest expression of intimacy and is, in fact, beyond mere words.

Can't find anthing in the Constitution to permit the Court to impose an unratified treaty on the American people? You have no imagination, none at all. Just read the supremacy clause; it means we are supreme in whatever we say we are supreme in.

To be sure, at the present time, we're needlessly hampered in that we must keep writing dull opinions to justify our orders with a fig leaf of constitutionalism.

But we've programmed the public elites so well in recent years that we expect soon to be able to dispense with the opinions altogether and go straight to the orders. Much more efficient that way.

Won't the conservative judges object, you ask? Not at all. They believe in following precedent, and our precedents say that we can make the Constitution say whatever we want it to.

Nifty, huh? We think so.

3:12:00 PM  
Anonymous Anonymous said...

so what's your point ? That we should ignore those decisions with which we disagree?

3:16:00 PM  
Anonymous Anonymous said...

Nope. The only justification in ignoring a decision is if it's illegal. Of course, that begs the question of who gets to decide if it's illegal? Our founding fathers believed that representatives of the people in government held that responsibility. Not just the courts. Anyone who takes an oath of office is bound to interpret the law. You can't escape it. If you don't interpret it, you can't "defend it."

People who believe in judicial supremacy actually believe our Founding Fathers were wrong to rebel against England. They are NOT true Americans. They are ideological Tories.

3:19:00 PM  
Anonymous Scott T. Whiteman, Esq. said...

Your denial of the right of the lesser magistrate to vindicate the True Law, in defence of the New Bad-Law, is the re-emergence of Prelacy and Romanist Hierarchy in Law. "Only the Magisterium/Supreme Court has the ability and authority to determine what 'is' is?" is your opinion. You take no account of the hierarchy of Law, i.e., God's Law is first, then man's, and every magistrate's Oathen-bound duty to support, protect and defend the Constitution from enemies foreign and domestic.

What would you have every lower-court justice do if there was a law by the Highest Court saying Jews had to be put in ovens?

Or, better, why do you think the Supreme Court is the higher court anyway? It was wholly outside of its authority to rule on how a state can prosecute its own citizens. Alabama MUST refuse compliance, or just admit that it is the lap-dog of the Federal gov't, and thank Massa for the scraps that fall from the table.

3:22:00 PM  
Anonymous Anonymous said...

Hey, Tom Parker supporters -- answer this:

1. Why do you support Tom Parker when he wastes our taxpayer dollars by not working as he should (as shown by the fact that he has authored ZERO opinions for the Court in the year since he's been there)?

2. As another poster queried, if Parker is so conservative, then why are his patrons the big-money plaintiffs' trial lawyers?

3. If you don't like having the U.S. Supreme Court decide what the Csontitution means, then who would you give that task to, and how could your idea possibly work?

3:22:00 PM  
Anonymous Anonymous said...

Nope. The only justification in ignoring a decision is if it's illegal. Of course, that begs the question of who gets to decide if it's illegal? Our founding fathers believed that representatives of the people in government held that responsibility. Not just the courts. Anyone who takes an oath of office is bound to interpret the law. You can't escape it. If you don't interpret it, you can't "defend it."

OK, then answer the Bill Clinton question another poster raised -- are you comfortable with that scenario? And more generally, how would it work if all our representatives had this authority? Would we have hundreds, if not thousands, of officials in this country deciding for themselves what the Consitution means? Who resolves the disagreements?

3:25:00 PM  
Anonymous Scott T. Whiteman said...

"If you don't like having the U.S. Supreme Court decide what the Csontitution means, then who would you give that task to, and how could your idea possibly work?"

How about the States? Are you so scared of liberty that you are unwilling to act locally and
would rather just have the Grand-Master keep you fat, safe and warm?

3:26:00 PM  
Anonymous Anonymous said...

Or, better, why do you think the Supreme Court is the higher court anyway? It was wholly outside of its authority to rule on how a state can prosecute its own citizens. Alabama MUST refuse compliance, or just admit that it is the lap-dog of the Federal gov't, and thank Massa for the scraps that fall from the table.

Scott, the bigots who opposed Brown v. Board couldn't have said it any better.

3:27:00 PM  
Anonymous Scott T. Whiteman said...

Bigots? Do you mean the ones who said that blacks have to go to school with whites to be smart, "cause no negro children can be smart unless they are around whitey?"

3:30:00 PM  
Anonymous Anonymous said...

How about the States? Are you so scared of liberty that you are unwilling to act locally and
would rather just have the Grand-Master keep you fat, safe and warm?


Scott, what the hell does this mean? You throw out a bunch of words, but without really explaining how your view of the world works. Please devote a little time to spell out your ideas so I can better understand them.

By the way, do you think that Brown v. Board was wrongly decided?

3:44:00 PM  
Anonymous Anonymous said...

Bigots? Do you mean the ones who said that blacks have to go to school with whites to be smart, "cause no negro children can be smart unless they are around whitey?"

No, Scott, the bigots who didn't want to share their schools (or buses, or water fountains, or restrooms) with blacks because blacks were seen as stupid and dirty.

3:47:00 PM  
Anonymous Scott T. Whiteman said...

If I may, please click on my name for a refutation of Stare Decisis.

Also, whether or not Brown was wrongly decidided is not the question. The question is, did the court have the Constitutional authority to hear the case, and the answer is flatly, "NO."

3:48:00 PM  
Anonymous Scott T. Whiteman said...

Thought your questions were dis-ingenuous and did not demand a response.

Any comment?

3:49:00 PM  
Anonymous Anonymous said...

Hey, Scott, I see you answered only the third question raised by the other poster. Let me repeat the first two:

1. Why do you support Tom Parker when he wastes our taxpayer dollars by not working as he should (as shown by the fact that he has authored ZERO opinions for the Court in the year since he's been there)?

2. As another poster queried, if Parker is so conservative, then why are his patrons the big-money plaintiffs' trial lawyers?


Any comment?

3:49:00 PM  
Anonymous Anonymous said...

Thought your questions were dis-ingenuous and did not demand a response.

Any comment?


Yeah Scott, I think your answer is what is disingenuous and that you're actually scared to answer those questions. Prove me wrong.

3:55:00 PM  
Anonymous Anonymous said...

I'm noticing a change in the focus of the comments on this thread: Unable to refute Justice Parker's message that state supreme courts should resist unlawful U.S. Supreme Court precedents, the critics are now attacking the messenger.

And, as usual when personal attacks are the weapon of choice, the attacks are highly misleading. For example, one poster claims Justice Parker has wasted taxpayer money by authoring "zero" opinions for the Alabama Supreme Court in the past year.

Of course this is not so: Justice Parker has written quite a few opinions for the court. Many of these opinions have been dissents, as Justice Parker is willing to stand up for principle even when it is not popular, but not all of his opinions have been dissents.

What the poster really means, but is not honest enough to communicate in a manner that is not misleading, is that Justice Parker has not yet released an opinion joined by the majority of his colleagues.

Not released is, of course, quite different from not "authored" -- as opinions sometimes circulate for extended time periods internally before being released. I suspect the poster knows this full well but doesn't care because his agenda is not truth but attacking Justice Parker.

But even if Justice Parker had released no majority opinions for the court and none were even internally circulated, so what? I'll take a principled, deliberate, careful judge over a pragmatic volume-maximizer any day.

Especially when his dissents, even when he stands alone, are often better-founded than the writings of those in the majority.

4:16:00 PM  
Anonymous YouCan'tHandleTheTruth said...

"Unlawful Supreme Court precedents" is an oxymoron.

5:40:00 PM  
Blogger C.S. Hayden said...

I am a late-comer to the discussion, but I wanted to add a few thoughts. First, a very simple question:

Do office holders pledge to uphold the Constitution or a Court's interpretation of the Constitution?

Some will say, "The Constitution, as interpreted by the Supreme Courts"

Another simple question:

Who gave the Supreme Court the sole role of interpreting the Constitution?

Your answer: "The Court, of course."

I am not an expert; I have never set foot in a law school. But I wonder if anyone else is somewhat skeptical of this idea that the Court can unilaterally give itself the sole power of interpreting the Constitution -- especially when its interpretations are subject to change.

The pragmatic argument often goes like this: if we have one unified source for interpretation, such as the Supreme Court, we will have stability. Really? Does this mean the Court will never change its interpretation of the Constitution? Of course not.

This ridiculous notion of supreme interpretation by the SCOTUS fails on pragmatic, historical, and principled bases.

The Court can and does change its interpretation, and this (whether justified or not) undermines the stability of the legal system; pragmatically, SCOTUS supremacy simply does not work.

Historically, as has been pointed out by previous commenters, the doctrine of "judicial supremacy" is tenuous at best. Even if we use Marbury v. Madison, while unjustifiably omitting the quotation cited earlier by southernlawyer, there are plently of instances such as Andrew Jackson's defiance of the Court and plenty of great Jefferson quotes, that cast doubt on the unity of opinion in the early 19th century.

Finally, and most importantly, from a principled standpoint, each office holder takes an oath to defend the Constitution. How can a person defend the Constitution while giving credence to faulty interpretations by the SCOTUS?

You might ask, "Who determines whether they are faulty?" As a Christian, my ultimate standard of authority is Scripture. Thus, Scripture coupled with the Constitution must provide my basis for evaluation of previous Court opinions. As Mr. Whiteman pointed out in his article about Stare Decisis, an opinion that gives legitimacy to a woman and her doctor murdering her unborn child is unscriptural and repugnant to the Constitution. Thus, it is absurd to assert that a judge is bound by Roe v. Wade -- even though it is presently considered a precedent of the SCOTUS.

Tom Parker is surely correct when he declares in his article, State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the Court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are "precedents."

5:54:00 PM  
Anonymous Anonymous said...

By the way, the Alabama Supreme Court issued several opinions today. Colonel Tom wrote none of them.

This is in keeping with Tom's practice, which has occurred each and every week since he took office, of doing nothing.

Tom, please return our taxpayer dollars to us.

6:12:00 PM  
Anonymous Anonymous said...

Unable to refute Justice Parker's message that state supreme courts should resist unlawful U.S. Supreme Court precedents, the critics are now attacking the messenger.

I don't know if you've read any of the above posts, but they have effectively refuted, if not destroyed, Parker's position.

And, as usual when personal attacks are the weapon of choice, the attacks are highly misleading. For example, one poster claims Justice Parker has wasted taxpayer money by authoring "zero" opinions for the Alabama Supreme Court in the past year.

Of course this is not so: Justice Parker has written quite a few opinions for the court. Many of these opinions have been dissents, as Justice Parker is willing to stand up for principle even when it is not popular, but not all of his opinions have been dissents.


By my count, Parker has issued only 4 or 5 dissents. These dissents, by the way, were not joined by any of his colleagues.

Parker has written no opinion on behalf of the Court. Every other justice has issued several. There is a considerable backlog of cases in his chambers, and he's been dressed down for this by several justices.

These are cold, hard facts.

6:23:00 PM  
Anonymous Anonymous said...

One might wonder how guys like Scott (who looks to be from Maryland) and Caleb (from Kansas) are finding their way here.

6:35:00 PM  
Anonymous Anonymous said...

There is a considerable backlog of cases in his chambers, and he's been dressed down for this by several justices. These are cold, hard facts.

If this is true to any degree (even allowing for exaggeration by someone of ill will) then you, if you have personal knowledge, and, if you do not have personal knowledge, whoever supplied you with this information, are in violation of the confidentiality oath of the court. For such violation, you are due to be fired and, if you are a members of a bar, due to lose your law license.

I find it remarkable that you have such hatred of Justice Parker's judicial philosophy that you are willing to risk your employment or that of your informant just to vent your undisciplined rage.

7:27:00 PM  
Anonymous Anonymous said...

YouCan'tHandleTheTruth said...
"Unlawful Supreme Court precedents" is an oxymoron.

That's the problem with you people, you believe that if the Supreme Court rules that black people are not "persons" they really and truly are not-- until the court overturns its own precedent-- if ever.

You guys are a bunch of Nazis to ascribe personhood based on a court decision.

7:28:00 PM  
Anonymous Anonymous said...

It's pointless to debate with Moore-ons.

9:01:00 PM  
Anonymous Anonymous said...

OUCH! You got me! My arguments fall under the hailstorm of your fiery logic!

Signed,

Proud Moore-on

10:06:00 PM  
Anonymous Anonymous said...

A response to Caleb:

He says,"Historically, as has been pointed out by previous commenters, the doctrine of "judicial supremacy" is tenuous at best. Even if we use Marbury v. Madison, while unjustifiably omitting the quotation cited earlier by southernlawyer, there are plently of instances such as Andrew Jackson's defiance of the Court and plenty of great Jefferson quotes, that cast doubt on the unity of opinion in the early 19th century.

Andrew Jackson, in fact, is an excellent example of what can go wrong when the power of the Supreme Court is ignored or "nullified." In Worcester v. Georgia, the Supreme Court ruled that the Cherokee nation was a "distinct community" with self-government, "in which the laws of Georgia can have no force." In reaction to this decision, President Andrew Jackson has often been quoted as defying the Supreme Court with the words: "John Marshall has made his decision; now let him enforce it!"

Georgia decided to ignore the decision, and Jackson took advantage of the crisis to pressure Cherokee leaders to sign a removal treaty. While most Cherokees rejected the treaty, it ultimately was used by the federal government, resulting in the deaths of thousands of Cherokees along the "Trail of Tears".

Hardly America's finest moment.

More disturbing is this comment: You might ask, "Who determines whether they are faulty?" As a Christian, my ultimate standard of authority is Scripture. Thus, Scripture coupled with the Constitution must provide my basis for evaluation of previous Court opinions. As Mr. Whiteman pointed out in his article about Stare Decisis, an opinion that gives legitimacy to a woman and her doctor murdering her unborn child is unscriptural and repugnant to the Constitution. Thus, it is absurd to assert that a judge is bound by Roe v. Wade -- even though it is presently considered a precedent of the SCOTUS.

If this doesn't exemplify the establishment of a state religion, I don't know what does. See what Caleb is doing? He is deciding whether Supreme Court decisions are worthy of compliance based on a detemrination that they are in accord with scripture. If a decision goes against the Bible, it need not be followed.

Surely Mr. Jefferson, whom Caleb cites in support of his positions, would roll over in his grave at the thought of this.

6:38:00 AM  
Anonymous SouthernLawyer said...

One might wonder how guys like Scott (who looks to be from Maryland) and Caleb (from Kansas) are finding their way here.

Don't pick on Caleb and Scott for being open about where they live. For all you know, half the anonymous posters who don't like Parker come from out of state.

Of course, if you've taken the time to track down the home states of these two men, then you probably already know they have covered Parker before on their respective media outlets.

In fact, Caleb has the best overview of Parker's oped and the response so far in a single post. Check it out; you might learn something:

http://cshayden.blogspot.com/2006/
01/justice-tom-parker-vs-errant-
precedent.html

8:32:00 AM  
Anonymous Not_A_Lawyer_Thank_God said...

For all the talk of "liberal judical activism" it sure sounds like we've got some conservative judges that have no qualms about inserting their own religious or social beliefs into their legal opinions.

Whether we like it or not, that's not the way "law" in a democratic, pluralistic society is supposed to be... and that's made pretty clear in the Constitution AND the writings of the Founding Fathers.

9:34:00 AM  
Anonymous Anonymous said...

In fact, Caleb has the best overview of Parker's oped and the response so far in a single post. Check it out; you might learn something

The "best overview," southernlawyer? You mean, "best" as in "most slanted in favor of Tom Parker and revealing complete ignorance of the legal tradition that has been established in this country for the past two centuries"?

I checked out the cite and, yep, its fully what I expected. The same stuff that you and Caleb and Scott and unclejack are putting out here.

I don't doubt that Scott and Caleb are generally paying attention to Colonel Tom's antics. The query is how did they get wind of this blog? Did Colonel Tom enlist their help?

9:52:00 AM  
Anonymous Anonymous said...

That's the problem with you people, you believe that if the Supreme Court rules that black people are not "persons" they really and truly are not-- until the court overturns its own precedent-- if ever.

Logic has been turned on its head. The U. S. Supreme Court has been the greatest champion of black people in this country's history. Its decisions of the 1950s, starting with Brown v. Board, really started the Civil Rights movement.

By the way, don't lose sight of the right of the people to overturn bad decisions, through the process of constitutional amendment. Yeah, its cumbersome, but its been done in the past. (Check out the history of the Eleventh Amendment).

9:58:00 AM  
Anonymous ProudToBeALawyer said...

Yes, unfortunately,"if the Supreme Court rules that black people are not 'persons' they really and truly are not-- until the court overturns its own precedent." Just like, if my local city council says that I have to "stop" at the end of my street, I really and truly have to, even if my reading of Leviticus tells me that a yield is sufficient.
I obviously can and should work to change the law, but only within the existing legal process. That's what the rule of law means. If I want to work to change Supreme Court precedent, I can push for a constitutional amendment or I can work to elect a President and Senators that will appoint and confirm Justices who have a judicial philosophy more in tune with my own. I cannot, however, simply ignore the law, or pretend that it doesn't apply to me because of my own personal religious beliefs.

10:43:00 AM  
Anonymous SouthernLawyer said...

The "best overview," southernlawyer? You mean, "best" as in most slanted in favor of Tom Parker?"

No. Go back and read what I said again. I said Caleb has supplied the best overview of Parker's oped and the response "in a single post". In fact, to my knowledge, it's the only such overview of both "in one post" (For example, Zac has so far posted on the oped and response in two separate posts).

So, by operation of logic, Caleb's single post is the best such out there, regardless of whether one agrees with Parker or not.

I think what you like least about Caleb's post is not his few comments in favor of Parker as much as that he actually quotes nearly all of Parker's oped during the course of the post. You would prefer that everyone read comments about what Parker said rather than what he actually said, because the latter might persuade a few more people to his side.

At any rate, it is proper for Caleb to devote the bulk of his post to quoting the oped because that's what started the debate. Newcomers to Caleb's blog who aren't familiar with the debate need to start at the beginning, with Parker's oped, to see what all the fuss is about.

10:49:00 AM  
Anonymous Anonymous said...

HEY PARKER, QUIT WASTING YOUR TIME ON BLOGS AND TRY WORKING FOR A CHANGE!

11:06:00 AM  
Anonymous Anonymous said...

As this thread started with a discussion on the “rule of law”, returning there seems to be appropriate. One of the central disputes is: does the SCOTUS have the final authority and responsibility to determine the “rule of law”.

In Art. 3, section 2, clause 2, of the Constitution, the unalterable scope of Supreme Court jurisdiction is given: all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party. Immediately following this grant of original jurisdiction, appellate jurisdiction is given under “such exceptions, and under such regulations as the Congress shall make”. If, as some of the comments allege, the SCOTUS if the final interpreter of the Constitution, why the restrictions? Could this perhaps be one of the “internal checks” that Hamilton desired to balance the powers of the federal government?

Even the SCOTUS has recognized that Congress can limit their appellate jurisdiction (see ex parte McCardle). Many would ask, if the SCOTUS is barred from hearing a class of cases, who will protect the rights of the people? The lower courts created by Congress (under such restrictions that Congress creates) and all levels of state court. As the power of appellate restriction is given to Congress, we must trust “we the people” to check unreasonable restrictions place by Congress.

Without raising the issue of a lower magistrates role in a dispute on the “rule of law” with the SCOTUS, the express language of the Constitution prevent the SCOTUS from asserting a position as the final arbiter of the Constitution.

11:52:00 AM  
Anonymous Anonymous said...

It's interesting that Palmer's column critical of Associate Justice Parker was released the same day that Chief Justice Drayton Nabers registered with the Republican Party as a candidate for the Chief Justice Position.

Coincidence? I don't think so. More like a preemptive strike, because political insiders have been telling Nabers that his prospects are cloudy if Parker chooses to run against him.

3:27:00 PM  
Anonymous Anonymous said...

Actually, Nabers would be the front runner. He will have the support of business, the Republican Party, the majority of judges throughout the State, inter alia. If Parker gets any support, it will be from the trial lawyers; and they haven't publically backed him yet. They're probably saving their money for Sue Bell Cobb. Tom Parker was luck to get elected last time (straight ticket voting in a Pres. election). Now that people know who he is, he is no longer electable.

3:46:00 PM  
Anonymous Anonymous said...

Not to mention, Tom Parker's poor job performance will hinder his ability to win support. Taxpayers expect their elected officials to actually work. It's been almost an entire year since he's been on the bench. He's had no majority opinions, only 6 or so concurring/dissenting opinions, and the number of resolutions to the cases assigned to him is astoundingly low compared to the other two justices --Smith and Bolin--who were inaugurated at the same time as Parker.

If he can't handle the work of an Associate Justice, then he won't be able to handle the additional administrative responsibilities assignd to the Chief Justice (Roy Moore couldn't handle them either). If he chooses to run, expect this to be a major issue.

Maybe you Parker supporters can help us understand why he's having trouble doing his job. Shouldn't we expect more out of an elected official who rakes in $150,000 per year out of the General Fund?

4:26:00 PM  
Anonymous Anonymous said...

Nabers has been a very effective C. J., even though he's one of the crowd out to screw plaintiffs every chance possible. As the head administrator of the judicial system, he does get kudos for a first rate job.

He should be able to effectively demonstrate that Parker is unqualified for the job, given that Parker has committed highway robbery in the first year of his term by stealing over $150,000 of our tax dollars while doing no work.

4:30:00 PM  
Anonymous Anonymous said...

I think one of the posters above is confusing the primary and general elections. It's true that straight-ticket voting for Bush contributed to Parker's win in the 2004 general election. But to get there, he had to defeat an incumbent justice in the Republican primary election.

The name of the incumbent was Jean Brown, and she was the front runner, with the overwhelming support of business, the Republican Party, the majority of judges throughout the State, etc. And those allies and Brown together outspent Tom Parker by 6 to 1. Parker still won.

Drayton Nabers may be favored by some on a hypothetical primary matchup with Tom Parker. But the cold, hard facts are that experienced political insiders across the state have repeated told Nabers in person that if Tom Parker runs against him, Nabers can't win.

Obviously, Nabers doesn't repeat this, because he would much rather for others to pay for a potentially losing campaign than tap into his own vast insurance fortune. But as Jean Brown discovered and Nabers fears, a huge funding edge is no guarantee of victory.

4:48:00 PM  
Anonymous Anonymous said...

Jean Brown lost because she ran a chicken-sh*t campaign, trying to pander to the religous right by portraying herself as a Ten Commandments supporter. Media coverage in the last few days before the primary focused on how her campaign message was disingenuous -- hardly a way to win.

If Nabers were to run such a pandering campaign, he too might lose. If he's not afraid to take Parker head-on, he should coast to victory.

Also, when Parker ran against Brown, no one knew what a slacker he was. Now we do.

5:46:00 PM  
Anonymous Anonymous said...

If Parker runs again, I wonder if he will get secret, under-the-table money from the plaintiffs' trial lawyers, like he did last time.

5:52:00 PM  
Anonymous Anonymous said...

Nah, I'm betting the trial lawyers will save their stash for Sue Bell Cobb, the Democratic nominee, who should be a formidable opponent for Nabers or Parker.

Without that dough, its hard to see how Parker can run any kind of race.

6:19:00 PM  
Anonymous Anonymous said...

Jean Brown lost because she ... tr[ied] to pander to the religous right by portraying herself as a Ten Commandments supporter...

If Nabers were to run such a pandering campaign, he too might lose.


Just what do you think his campaign book on character is?

7:10:00 PM  
Anonymous Anonymous said...

I posted that above, and I know the difference between primary and general elections. Specifically, I am well aware of the happenings of the 2004 general and primary elections. I purposefully didn't mention anything about the primary.

My point was, plenty of Republicans would have crossed over to vote against Parker and for the Democrat candidate (his name escapes me at the moment) if they knew who he was.

Unfortunately, the typical Alabamian doesn't pay close enough attention to Supreme Court races to know the differences between the candidates especially in the general election. They tend to vote for the party when they don't have a clue about the candidates. This is what happened in the 2004 General Election.

Most primary voters have a better idea of whom they are voting for. Parker ran a dirty and disenginuous campaign against Brown. The campaign, however, generated enough anger against her to overcome Brown's support from the traditional Republican support groups.

7:21:00 PM  
Anonymous Anonymous said...

ProudToBeALawyer said...

Yes, unfortunately,"if the Supreme Court rules that black people are not 'persons' they really and truly are not-- until the court overturns its own precedent."

Bunch of Nazi pigs. You make me sick. You basically think Hitler was only "wrong" because he was unsuccessful. You might "personally" disagree with his bigotry, but if he and his court system hold the reigns of power, all that is "legal" shifts in their favor.

You divorce morality from law and make both subservient to the arbitrary whims of a few black-robed plutocrats. That's why you are all despots in the making. God save us from your kind...

If you're so confident of your judicial philosophy, put it in a political ad for your buddy Drayton Nabers. Get him to say that black people are only "persons" because the Supreme Court says so.

I dare ya.

8:10:00 PM  
Anonymous RunTomRun said...

I think the Nabers supporters are right. Drayton should get out and be who he is: a rich Limousine Liberal who thinks that the working man works for him and believes that the South should be more like the North. Coupled with attacking people who oppose higher taxes as "bad Christians" this is definitely the strategy for Drayton to follow!

9:12:00 PM  
Anonymous Colonel Rebel said...

The Parker-hater above thinks voters are idiots and that the only solution is to take away our right to elect Judges. Like the poster above said, people who want to make the South like the North, with their high taxes, urban decay, etc.

9:14:00 PM  
Anonymous Anonymous said...

The Parker-hater above thinks voters are idiots . . ."

Only some of them.

9:53:00 PM  
Anonymous Anonymous said...

runtomrun sez, "Drayton should get out and be who he is: a rich Limousine Liberal who thinks that the working man works for him and believes that the South should be more like the North.

Runtom, do you even know what you are talking about? Have you read the first decision that Nabers has written while on the Court? Try to tell me how you can possibly characterize him as a liberal by any stretch of the imagination?

Nabers has settled in with the group on the Supreme Court that has effectively gutted the ability of plaintiffs to recover in lawsuits. He is a darling of the pro-business conservative crowd. Pleas, ask any lawyer about this point, and you will get that confirmation.

runtomrun, if you are so concerned about "liberals," doesn't it give you pause that your man, Colonel Tom, has accepted so much money from the plaintiffs' trial lawyers?

Next time you take a position, do a little research first.

10:03:00 PM  
Anonymous Anonymous said...

OK, Parker-lovers, you still are refusing to address two big problems with your man:

1. He hasn't done his fair share of work during his first year in office,as shown by the fact that he hasn't written ONE opinion on behalf of the Court (and only 4-5 dissents); and

2. He likes to take plaintiffs' trial lawyer money to fund his campaigns.

Unless you guys can effectively respond to these points, Colonel Tom won't be a credible candidate.

10:08:00 PM  
Anonymous Anonymous said...

Something that's lost in all this legal mumbo jumbo is the fact that Congress and the states possess means to override a US Supreme Court ruling through the Amendment process. Therefore, if the Court was to do something so ridiculously outlandish such as rule that a black person is not a person under the law, the Amendment process could rectify that.

Certainly Tom Parker knows this procedure. Why didn't he mention it in his piece? It's way to go about reversing the Supreme Court.

12:41:00 AM  
Anonymous runtomrun said...

No one cares who funds Parker's campaign. Deal with it.

1:35:00 PM  
Anonymous Anonymous said...

So, if Parker received campaign contributions from NOW or PETA or the CEO of the ACLU, you're telling us that no one would take notice?

2:57:00 PM  
Anonymous Anonymous said...

No one cares who funds Parker's campaign. Deal with it.

Anyone who believes that is not a real conservative.

4:24:00 PM  
Anonymous Anonymous said...

Sounds like Drayton Nabors, ACLU, NOW and PETA.

5:15:00 PM  
Anonymous Anonymous said...

Nabers a liberal? HA! I'm sure that's how Tom Parker will try to paint him.

7:05:00 PM  
Anonymous Anonymous said...

is anyone getting anywhere on this blog at this point?

7:12:00 PM  
Anonymous Scott T. Whiteman said...

From Maryland. You cracked my code. I gave you reference to my website where it states that I'm a practising attorney in Maryland. I wonder, how did you crack my code so quickly?

So, anonymous, or anonymous, or anonymous, where are you from? How could we know?

How did I get here? As a Maryland attorney, I look forward to the day what any state official does the right thing in court. What happens in Alabama could be helpful to me in Maryland's effort for self-government. I took took an Oath, as a lawyer, to the U.S. Constitution. I cannot rely on previous perjuries by senior jurists to justify my actions. If I enforce against my opponent even one unconstitutional (but Supreme Court approved) statue, I have committed my own perjury, and profaned the Name of God. I cannot cover my offences or responsibilities by saying, "Just following orders." In America, we literally take Oaths to the Constitution, under God and not to men. But it has been, I will admit, the practice in recent decades to displace the object of the Oath with the opinions of the Supreme Court, but thanks to men like Justice Parker, perhaps more will be willing to actually obey their Oath of Office.

8:15:00 AM  
Anonymous Hadrian said...

Some of you may know that I have railed against Tom Parker's laziness during his first year on the Court. Wonder what ol' Tom has been up to? The following constitutes the entirety of his written product while on the Court:

Concurrences

Ford v. Carylon Corp., Inc., --- So.2d ----, 2005 WL 3007971 (Ala. 2005)

Birmingham-Jefferson Civic Center Authority v. City of Birmingham, 912 So.2d 204 (Ala. 2005)


Dissents

Ex parte Snider, --- So.2d ----, 2005 WL 3082278 (Ala. 2005)

Ex parte McMorrough, --- So.2d --, 2005 WL 3084891 (Ala. 2005)

Ex parte G.C., Jr., --- So.2d ---, 2005 WL 1793345 (Ala. 2005)

Marks v. Tenbrunsel, 910 So.2d 1255 (Ala. 2005)

Fox Alarm Co., Inc. v. Wadsworth, 913 So.2d 1070 (Ala. 2005) (three sentence dissent)

A couple of points bear emphasis. First, in no instance was Parker able to convince any other justice to join in with anything he has written. Each of these writings is from him alone. Second, the obvious -- none of these is an opinion that Parker has written speaking for the Court. Meanwhile, a quick tally shows that fellow rookies Patty Smith and Mike Bolin have each written over 10 opinions for the Court, not to mention their separate writings.

I guess a serious debate can concern his philosophy, although some of the prior postings are laughable. What is beyond debate is that Parker is guilty of gross dereliction of his duty, which constitutes a violation of the Judicial Canon of Ethics.

8:38:00 AM  
Anonymous Anonymous said...

Uh, Scott, no one is really interested in you or your philosophy. The question posed was how did you find out about this discussion?

8:43:00 AM  
Anonymous Hadrian said...

OK, I’ve had the chance to review the prior posts here. Parker articles seem to flush everyone out of the woodwork. Some observations:

1. A poster named watchingu starts things off with a cameo appearance for the sole purpose of an ad hominem attack on this guy Palmer, who I don’t know from Adam.

2. Southernlawyer next weighs in by asserting “This doctrine, first asserted in the 1958 case of Cooper v. Aaron without any textual or historic authority offered in support, holds that the United States Supreme Court alone may interpret the Constitution and that its interpretations are binding on every other court and every other branch of government.” A later post, which quotes extensively from the Cooper decision, belies this point, as it shows that the Court relied on several prior decisions in reaching its holding.

3. Southernlawyer next tries to blame Professor Laurence Tribe for the mess he sees. That may be giving Tribe too much of the blame, as he did not even graduate from law school until the mid-1960s and his first treatise on constitutional law was not published until 1978.

4. One of the more amusing aspects of this thread is the occasional effort to paint the other members of the Alabama Supreme Court as “liberals.” Harold See would be rolling on the floor laughing at that. Let’s make one point clear: Nabers, See, et al, can be called many names, but “liberal” ain’t one of them.

5. Unclejack joins the fray by claiming that Roper neeed not be followed since it was only a 5-4 decision and will be overturned. Such a statement reveals an unfamiliarity with our legal system A 5-4 decision is every bit as binding as a 9-0 decision. Don’t expect Roper to be quickly overturned either. Even with Roberts and Alito on the Court, the balance hasn’t changed since they replace members who were in the Roper minority.

6. A poster seeking to test the Parker-philosophy posed this question, which I think is a good one: If your view of the world is right, then every constitutional officeholder (in other words, every official who takes an oath to uphold and defend the Constitution) had the power to decide for himself what our rights and duties are under the Constitution. Would you have been comfortable having Bill Clinton, as President, take such a position? What if Hillary is elected? Would you be comfortable if she argued that she has the power to decide what constitutional limitations, if any, there are on the Executive Branch?
To date, no one has tried to answer this one.

7. Scott Whiteman from Maryland makes this statement: “Also, whether or not Brown [v. Board of Education] was wrongly decided is not the question. The question is, did the court have the Constitutional authority to hear the case, and the answer is flatly, "NO." With that, Scott’s credibility goes bye-bye.

8. Caleb from Kansas sez that his litmus test fro deciding whether Supreme Court cases are valid is whether they comport with the Bible. OK, Caleb’s credibility just went bye-bye, too.

9. Thanks for the poster who gave us a little history lesson on Andrew Jackson. Don’t know what the allure of Jackson is (Parker seems to love him), but he sure did screw over the Indians. He was a real sonofabitch, too.

10. Several posters have noted the point I emphasize – namely, that Parker has been stealing our tax dollars by doing nothing on the Court.

11. Also unrebuked is the historical fact that Parker’s victory against Jean Brown was financed by big money contributions from plaintiffs’ trial lawyers. More particularly, it was from three PACs controlled by the trial lawyers. This poses a problem if Parker seeks to claim he’s a conservative.

12. Many posts imply a Nabers-Parker race. That’s not materialized yet, as Parker has not announced any intent to run against Nabers.

13. Finally, I love the guy who calls everyone else “Nazi pigs.” That adds a lot to the discussion.

9:54:00 AM  
Anonymous Parker4ChiefJustice said...

Thanks, Hadrian. Nice accurate report on Parker's (lack of) work and a good summary of the food fight that passed for a discussion on his judicial philosophy. So, Parker is guilty of violating at least two Judicial Canons: He has failed to faithfully fulfill his job responsibilities, and he has engaged in public comment about a pending case. Can a complaint with the Judicial Inquiry Commission be far off?

11:28:00 AM  
Anonymous Anonymous said...

We are the majority. You are the minority. If you don't like things here, move to San Francisco or some other liberal bastion. Otherwise, shut up and go back in the corner, where you belong.

12:19:00 PM  
Anonymous Anonymous said...

Can a complaint with the Judicial Inquiry Commission be far off?

If you think Parker has violated the Canons of Judicial Ethics, why don't you file the complaint yourself? Put your name on it rather than trying to get someone else to do your dirty work for you.

1:06:00 PM  
Anonymous Parker4ChiefJustice said...

OK, you talked me into it.

1:24:00 PM  
Anonymous Anonymous said...

Hadrian, thanks for summarizing the issues as you see them It makes it easier to refute wrong conclusions point by point:

1. Just because you don't know Palmer from Adam doesn't mean that pointing out the business influence that is likely behind his op-ed isn't relevant to the discussion.

2. The quote from Cooper includes no reference to prior court decisions supporting the doctrine of judicial supremacy over the constitution. It also failed to include the relevent text:

"[Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution and that principle has ever since been respected by this
Court and the Country as a permanent and indispensable feature of our constitutional system." 358 U.S. 1, 18 (1958).

This is in direct contradiction to what Marbury actually says: "that courts, as well as other departments, are bound by [the Constitution].").

So southern lawyer's point, that there is no Constitutional or historic authority for the claim of SCOTUS judicial supremacy in Cooper, remains unrefuted.

3. The comment about Tribe's influence referred to his Constitional Law casebook, not his treatise. That con law casebook has dominated the market dominent for more than two "decades" -- just as southernlawyer claimed.

4. Harold See and the other members of the Alabama Supreme Court are liberals with respect to how they deal with bad U.S. Supreme Court precedents.

By passively accepting the notion that a judicial opinion is "binding" "law" apart from the case without support from the text of the Constitution or any appeal to original understanding, they act as activists on some of the most important issues, however "conservative" they may be on other issues.

5. You beg the question when you assert, without any supporting evidence, that a U.S. Supreme court decision is binding precedent. A SCOTUS decision binds the lower court in that case (hence the legal term "law of the case") but that is not the same as binding precedent.

Past SCOTUS opinions may claim they are "law" apart from the particular case, but the Constitution does not say so and neither does any other authority a state Supreme Court is obligated to follow. Posters who support this doctrine of binding precent need to provide such authority or stop claiming old judicial opinions are "binding" "law" on other cases.

6. Presidents already make their own decisions about the constitutionality of actions they want to take and act accordingly. It happened under Clinton and it's happening under Bush. It's part of the checks and balaances built into the Constitutional system.

Another such check and balance is between the federal and the state levels. Nothing in the Constitution says that state supreme courts cannot independently interpret the constitution.

7. Scott did not offer any explanation of this comment, so it remains to be seen how strong his argument would be. I think it's premature to doubt his credibility in the meantime.

8. Caleb said the Bible is his final authority for evaluating the legitimacy of a law. That shouldn't undermine the credibility of a distinct argument he makes about the Constitutionality of something. The assert that it does is to commit the genetic fallacy in logic.

9. Jackson refused to follow a U.S. Supreme Court opinion that the Bank of the United States was Constitutional. His treatment of native Americans has nothing to do with whether or not his Constitutional philosophy was correct or not. Your view on this point also is an example of the genetic fallacy.

10. It's absurd to claim that Parker has been stealing tax dollars by doing "nothing" on the Court. Actually, he has voted on almost exactly the same number of cases as his colleagues. About the only true comment so far posted in this regard is that he has written fewer opinions than his colleagues.

Given the fact that opinions are issued in only a small minority of cases, and that whether or not an opinion is needed involves a certain amount of individual discretion on the part of a justice handling a case, perhaps we should be glad that less rather than more is written, to limit the growth of complexity in the law (more words usually means more complexity).

In fact, those who hate Parker and what he stands for should be glad he has taken such a conservative approach to writing opinions; otherwise he might have done more to influence his colleagues in his direction. If Parker opponents were thinking rationally, they would rejoice privately in his lack of verbosity rather than provide public incentive to increase it.

But as this thread demonstrates, many of Parker's opponents aren't thinking rationally.

11-12. I agree that Parker has not announced he will run for the chief justice position and that we should not presume so in the meantime. Also, if he does run, any trial lawyer funding would be an issue. We'll have to see. Meanwhile, I think one of the legitimate points in this regard has been that Nabers is acting as if Parker will run.

13. There is logic to the Nazi reference. People tend to forget that the Nazi's were democratically elected into power and that what they did was according to the "rule of law" as that terms as used by Parker opponents.

There is a philosophical connection, even if it is not obvious at first glance.

2:22:00 PM  
Anonymous Plato said...

Parker supporters are masters of post hoc ergo proper hoc, only this and nothing more, unless its a christ like rising of truth from their words, sui generis, simply beyond rapproach.

2:24:00 PM  
Anonymous Anonymous said...

Here is what Jackson said about judicial supremacy and the notion that U.S. Supreme Court precedent is inherently binding:

"It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled....

"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.

Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.

"It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.

The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.

"The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."

2:35:00 PM  
Anonymous Scott T. Whiteman said...

Uh, Scott, no one is really interested in you or your philosophy. The question posed was how did you find out about this discussion?
I read-up on Parker because I like him, I read the story, contacted someone in Alabama (who I know is a Parker supporter, sure) and asked how I could help from up here at the top corner of Dixie. He reads this forum, and suggested I chime in.

Is that permissible? It is even germane to the conversation?

As for you, anonymous, who are you? Where do you come from? What's your job? Income? Sex? Favourite food? Favourite colour? How fast can you run a mile? Do you like gladiator movies?

Since it would please you, I'll step out of this forum since as a Marylander I have no particular dog in the fight (except as it helps me in Maryland to have a good judge in Alabama).

Of course, anonymous, I could just always come back as anonymous and chime in and you'd be none-the-wiser.

3:14:00 PM  
Anonymous Anonymous said...

7. Scott Whiteman from Maryland makes this statement: “Also, whether or not Brown [v. Board of Education] was wrongly decided is not the question. The question is, did the court have the Constitutional authority to hear the case, and the answer is flatly, "NO." With that, Scott’s credibility goes bye-bye.

8. Caleb from Kansas sez that his litmus test fro deciding whether Supreme Court cases are valid is whether they comport with the Bible. OK, Caleb’s credibility just went bye-bye, too.

As a completely disinterested person with no prior knowledge of Mr. Whiteman (but from his writings, I can tell, he sure is smart, and cute), nor Caleb (actually, I don't know him -- not that I'm anybody -- and I'm certainly NOT from Maryland, and you can believe me because I posted anonymously) how can you say that their opinions eliminate their credibility? Is is not permissible to believe that the Court has limitations as set by the U.S. Constitution? Is it not a matter of fact that our founders appealed to the Supreme Judge of the World (so styled in the Declaration) for the justification of their cause?

Do you deny, as Blackstone noted, "that the Legislature in all ... cases acts only ... in subordination to the great lawgiver, transcribing and publishing His precepts."

Do you believe that man is sovereign, and if you do then I suppose it does make sense to resort to the "biggest" man as the law-giver.

But what makes Parker great is that he realises that his ability to rule by arbitrary whim is restricted by his Oath and the God to whom he will be held accountable for any violation of his Oath. I wish only that more judges thought like him.

3:26:00 PM  
Anonymous Hadrian said...

Oh goody, I get to join the fray now! A reply to the anonymous poster (please at least use a pseudonym so we can refer to each other by name!)

1. My first point didn’t really seek to speak about this guy – it focused more on the bad start we had in view of the personal attack leveled by watchingu. From time to time, we’re all guilty of sometimes attacking the messenger rather than the message, I suppose.

2. The Parkerites’ treatment of Marbury v. Madison always focuses on this line: “that courts, as well as other departments, are bound by [the Constitution].". I have no dispute with this assertion. All branches of government, at every level, are under the Constitution. The Parkerites do ignore the line that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” In other words, Chief Justice John Marshall is telling his cousin and arch-nemesis, President Thomas Jefferson, that the Court decides what the Constitution requires, not the Presidency or the Congress.

Cooper doesn’t rely on just Marbury. The decision also states the following :
“Chief Justice Marshall spoke for a unanimous Court in saying that: ‘If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery * * *.' United States v. Peters, 5 Cranch 115, 136, 3 L.Ed. 53.”

The Cooper decision then says:
A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, ‘it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases * * *.' Sterling v. Constantin, 287 U.S. 378, 397-398, 53 S.Ct. 190, 195, 77 L.Ed. 375."

This is what any legal opinion does. It builds on prior decisions, applies them and sometimes extends them to address new or different situations.

In any event, I still don’t know why there is such hostility toward Cooper. It was an unanimous decision and it has never been called into question by subsequent decision of the Court.

3. My comment about Tribe is to correct any mis-impression that all these troubles result from him. While he is a controversial figure, he’s not the root of the Parkerites’ ills. He was in college (or even high school) when Cooper came down, for example.

4. Harold See and the other members of the Alabama Supreme Court are liberals with respect to how they deal with bad U.S. Supreme Court precedents. By passively accepting the notion that a judicial opinion is "binding" "law" apart from the case without support from the text of the Constitution or any appeal to original understanding, they act as activists on some of the most important issues, however "conservative" they may be on other issues. .

This is a fascinating statement. In mainstream political discussion, those who apply the law rather than interject their own personal beliefs are deemed conservatives, while those who reject laws that they deem counter to their personal conclusions are regarded as the activists. I’m sure that politicians such as George Bush, Jeff Sessions and Orrin Hatch would agree with this.

The above quote turns this upside down. Those who follow U. S Supreme Court decisions are activist while those who decide to use their own philosophy to reject those decisions are the conservatives. This approach falls outside the mainstream of political and legal dialogue.

5. You beg the question when you assert, without any supporting evidence, that a U.S. Supreme court decision is binding precedent. A SCOTUS decision binds the lower court in that case (hence the legal term "law of the case") but that is not the same as binding precedent.

In a narrow sense, you are correct. A judicial decision determines only the particular case before the court. Given our jurisprudence, and the importance of following precedent, however, the point remains. Any judge, in ruling on a point of law, will look to prior caselaw decided that may bear on the issue. If a trial judge sees a state supreme court decision that speaks to an issue in the case before him, he is bound to follow and apply that decision. That’s how our court system has worked here in America (and before that, in Britain), for hundreds of years. Now as to the governing effect of U. S. Supreme Court decisions, see Marbury and Cooper.

6. I’m sure that presidents do take into account the constitutionality of proposed actions, as they should. What if there is disagreement or conflict? Who decides? When Richard Nixon balked at producing the tapes to congressional investigators, who decides the issue of the constitutional powers involved? The Supreme Court assumed that role, and everyone accepted its role in that drama.

The point is that must be a FINAL arbiter of what rights and powers are under the constitution. If everyone is free to follow his or her own personal interpretation, then we cannot avoid chaos.

Consider what would have happened in the wake of Brown v. Board if the southern states could have nullified the decision. Can anyone argue that such would have been a good result?

7. Scott’s comment on this point was a pretty telling one, I think, but I will agree to defer further consideration.

8. To be fair to Caleb, rather than characterizing what he said, I’ll just quote him and let readers decide for themselves:“How can a person defend the Constitution while giving credence to faulty interpretations by the SCOTUS? You might ask, "Who determines whether they are faulty?" As a Christian, my ultimate standard of authority is Scripture. Thus, Scripture coupled with the Constitution must provide my basis for evaluation of previous Court opinions.”

9. I forgot that Jackson took this approach with the Bank of the United States decision, too. My example of the Cherokee Indians case shows the abuse that can occur when we become a nation of men rather than of laws. Excuse me for my own ignorance, but I’m unfamiliar with the term “genetic fallacy.”

10. Now you’ve hit a sore subject. You can’t try to refute the truth that Parker has not kept up with the work that the other justices have done. You are right in one regard, however; given the kind of positions he has put forward in his bizarre dissents, perhaps I should count my blessings.

11-12. No reply needed.

13. Calling someone a “Nazi” is pretty strong, don’t you think? The rise of Nazi Germany bears no similarity in any way to our situation, and it is just another kind of ad hominem attack that does little to advance your viewpoint.

3:27:00 PM  
Anonymous Anonymous said...

Now we have another justice commenting publicly about what another justice said publicly about the whole court....what next?

Justice Parker at odds with other justices over murder case
1/16/2006, 12:00 a.m. ET
By PHILLIP RAWLS
The Associated Press


MONTGOMERY, Ala. (AP) — State Supreme Court Justice Mike Bolin was shocked one morning when he opened his newspaper and saw an op-ed page article by Justice Tom Parker criticizing Bolin and the other justices for following a decision by the U.S. Supreme Court.

Parker accused his fellow justices of being accomplices to unconstitutional actions by activist judges.

"It is an unprecedented attack by a member of the Supreme Court on each fellow justice and an attack on the court as an institution," Bolin said.

Parker said his op-ed page article, published Jan. 1 in The Birmingham News, was not meant to be personal or political. "It's judicial philosophy," he said.

Parker, once an aide to former Chief Justice Roy Moore, got elected to the Supreme Court last year. His article renewed speculation that he was getting ready to enter the Republican race for chief justice against GOP incumbent Drayton Nabers.

"It was not written with that in mind. I am getting people urging me to run, but I'm just watching and waiting at this point," Parker said in an interview.

Nabers declined comment on Parker's op-ed page article.

The disagreement among the all-Republican court stems from a decision issued by the court on Dec. 23. All the justices except Parker reversed a lower court decision upholding a death sentence for Renaldo Chante Adams, who was 17 when he raped and murdered a pregnant Montgomery woman. The case now goes back to a lower court, where prosecutors expect Adams to get a sentence of life in prison without parole.

The Alabama Supreme Court based its decision on a U.S. Supreme Court ruling last year that barred the execution of people who were under 18 when they committed murder.

Parker couldn't participate in the Adams decision or write a dissenting opinion because he worked on Adams' case earlier in his career as an assistant state attorney general. Instead, Parker chose to write an op-ed page article for the state's largest newspaper, where it got far more exposure than a dissenting opinion would.

Parker wrote that he was not surprised that "liberal activists" on the U.S. Supreme Court used "ridiculous reasoning" — including citing foreign laws — to reach their 5-4 decision against executing juveniles.

"But I am surprised, and dismayed, that my colleagues on the Alabama Supreme Court not only gave in to this unconstitutional activism without a word of protest but also became accomplices to it by citing Roper (the U.S. Supreme Court's decision) as the basis for their decision to free Adams from Death Row," he wrote.

Parker wanted his colleagues to uphold Adams' death sentence and then use the case as a way to get the U.S. Supreme Court to reconsider its decision — or to at least show that the Alabama Supreme Court was "standing up against judicial activism."

Parker's desire to buck a U.S. Supreme Court decision came two years after his former boss, Roy Moore, lost his job as chief justice for refusing to follow a federal judge's order to remove his Ten Commandments monument from display in the state judicial building.

Bolin said he doesn't like the U.S. Supreme Court's decision against executing minors, but the Alabama Supreme Court can't ignore it. "It's controlling precedent," he said in an interview.

Bolin accused Parker of exercising the same judicial activism that he criticizes in his article.

"It's an activist — I'd call it liberal — point of view," he said.

Gary Palmer, president of the Alabama Policy Institute, a conservative education and research organization in Birmingham, doesn't like the U.S. Supreme Court's ruling either. But he said the eight justices on the Alabama Supreme Court were upholding the rule of law, and Parker was undermining the decorum of the court by attacking their credibility.

"By writing the article, Parker himself demonstrated a lack of judicial restraint and that is no way for a member of the state's highest court to conduct himself," Palmer said in a statement.

Michael Krauss, a law professor at George Mason University in Virginia and a fellow at the Heritage Foundation, said it's unusual to see a judge write an op-ed article, but "it's almost refreshing to see that difference of opinion come out in the open."

Krauss doesn't buy the argument about Parker acting like a liberal activist judge.

"If it's activism to resist judicial activism, then the first activist always wins," he said.

Krauss, on the other hand, doubts that Parker's strategy would have worked. He said the two recent changes in the U.S. Supreme Court involve justices who were in the minority on the death penalty case, and even if more changes occur on the court, the justices probably wouldn't want to get back into a hot issue so soon.

"At this point the court is not prepared to overturn the previous decision," he said in an interview.

With Parker's strategy now moot, he's left to wonder whether anyone will file a complaint with the Alabama Judicial Inquiry Commission accusing him of violating the state Canons of Judicial Ethics.

One of those canons says a judge should promote public confidence in the judiciary.

"You have to question whether some or all of this was a violation of the canons," Bolin said.

Parker says he was simply upholding his oath of office to support the Constitution, and his writing didn't violate the canons.

He's heard rumors that a complaint may be filed, like the one that led to Roy Moore's removal from office, but so far, he says he's seen no sign of it.

After the reaction to this op-ed article, would Parker write another?

"It depends on what comes up. I'm passionate in defense of the Constitution I swore to support," he said

3:48:00 PM  
Anonymous Anonymous said...

A response to Scott:

As for you, anonymous, who are you?
An Alabamian, trained in the law, dismayed to see nut jobs like Moore and Parker running around.

Where do you come from?
Sweet home Alabama.

What's your job?
I'm a lawyer and trouble-maker.

Income?
Yes, but not enuf.

Sex?
Yes, but not enuf.

Favourite food?
now thats a toughie -- I'd say Bar-B-Que.

Favourite colour?
Red, white and blue.

How fast can you run a mile?
Are you kiddin'? It's been so long I don't even remember.

Do you like gladiator movies?
Loved Sparticus and Gladiator.

4:10:00 PM  
Anonymous Anonymous said...

C'mon gang, we're close! Let's get to 100 posts!

4:11:00 PM  
Anonymous Anonymous said...

I am shocked that Justice Bolin would publically criticize a fellow Justice. I think Judge Bolin is undermining the credibility of the court! I smell a JIC complaint in the making...

4:22:00 PM  
Anonymous Anonymous said...

Scott’s comment [RE: Brown v. Board] was a pretty telling one, I think, but I will agree to defer further consideration.

What telling? No one has made the case that I'm for racial segregation; I did not state that I believe the case was decided wrongly; I explicitly stated that I believe that suggesting that blacks should sit next to whites to make the smart rub-off is a racist view that diminishes the inherent intellectual ability of blacks.

If I must go on record, I will state that sometimes, integration is good, sometimes it is bad. It probably depends on the particular circumstances and the individuals involved. What I do know is that no civil government is given any power to make those determinations, instead they remain vested in the People.

As such, if you want to integrate, you are free to do so. If you want to be a racist, you are free to be one. The Freedom of Association necessitates it, and it also provides that I am free to picket or boycott any business that segregates on the basis of race or provides inferior service to blacks.

What the Freedom of Association does not do is provide the Government with the ability to forcibly associate. The First Amendment is a negative power, not a positive one. It denies the Congress from making laws forcing people to associate.

The precursory view of racial issues taken by most Americans today (separate is not equal per se) does a tremendous disservice to the integration of the races and fails to fully value the contributions of countless black Americans.

If you are suggesting that because I believe that the Federal Government lacked any jurisdiction to rule in the matter of Brown v. Board of Education that I am a racist, you could not be more wrong -- you could try, but you would not succeed. Instead, your objection is not with me, but with the U.S. Constitution, Article III, to which you took an Oath as an attorney.




(Oh, sorry, I'm anonymous. I didn't mean to write in the first person. Please remove every instances of "I" or "me" and replace it with "Scott" or "he")

4:56:00 PM  
Anonymous Anonymous said...

Thank goodness Scott's political views are in the minority and no where near the mainstream.

5:14:00 PM  
Anonymous Anonymous said...

Well, Scott's at it again!

What telling? No one has made the case that I'm for racial segregation; I did not state that I believe the case was decided wrongly; I explicitly stated that I believe that suggesting that blacks should sit next to whites to make the smart rub-off is a racist view that diminishes the inherent intellectual ability of blacks.

Scott, I do not recall anyone saying that the reason for de-segregation (not integration, as you mis-characterize it) is to have the smarts rub off the white folk onto the dumb blacks. No one says that -- its a straw man that you're propping up so that you can knock it down.

A good reason for de-segregation is that the bigots in charge of governments in the southern states made sure that separate black schools had nowhere near the resources as the white schools. One reason for de-segregation was to equalize, as much as possible, the availability of resources, or at least to lower barriers so that such disparities were ameliorated.

What undermines your argument, Scotty, is that blacks wanted de-segregation. Several black families were beaten and brutalized here in Birmingham when they tried to register in the white shcools after Brown. They would never even understand a bizarro, upside-down view that being with whitey was insulting to their intelligence. Rather, they felt the stigma of being separated by the color of their skin.

It sounds like you're arguing that you're not a racist, and don't condone racism, but that government can't do anything about it. On the one hand, I see your point. We will always have racists, and no court will change that.

But what if there are racist laws on the books? Then we go beyond what is simply in the private hearts of men. We have the power of a state government denying certain rights and privileges to a group because of their race. You can only sit in the back of the bus. You cannot register to vote unless you pass some impossible test and pay a poll tax. You black men can't marry our white women.

The Supreme Court, and the lower federal courts, said that such laws cannot stand. Scott, do you think that such racist laws violate any federal constitutional rights? If so, don't the federal courts have the power and the responsibility to provide redress to those whose rights are being violated?

5:37:00 PM  
Anonymous Anonymous said...

By the way, happy MLK day!

5:37:00 PM  
Anonymous Anonymous said...

Scott - What do you Constitutionalists think about the Amendment process? Don't you realize that Congress and the States have the Constitutional authority to overturn Supreme Court precedent by Amending the Constitution. So, really, Congress and that States have the final say on Constitutional matters. If you believe the SCOTUS has usurped power that (so you say) the Constitution did not grant to it, then you and Parker should be petitioning Congress to begin the Amendment procedures to reverse course. Challenging the power of the courts within the courts is insane because very few judges (and few people for that matter) share your point of view.

5:42:00 PM  
Anonymous Martin Luther (the Lutheran) said...

You folks are not very creative. If the supreme court is using foreign law to "interpret" the constitution, what makes you think there can be an amendment water-tight enough to keep the federal courts from running around it?

Case in point: 2nd Amendment. What part of "shall not be infringed" does the court not understand?

Another case in point, privacy and abortion rights are never even hinted at in the Constitution. But the Supreme Court has created these rights by the "emanations" coming from the document!!! What kind of emanation would they find in an amendment designed to counter a previous supreme court decision?

6:07:00 PM  
Anonymous Anonymous said...

I guess the founding fathers weren't the creative ones. They're the ones who crafted the Constitution with the Amendment process. If the will of the people demanded Congress take action to limit the authority of the Supreme Court, then it would be done. The will of the people, however, demands that every judge and citizen adhere to the rule of law. Any view to the contrary is considered fringe.

If an amendment says "No Abortions", there's no getting around it and no court will ever be able to do so unless they subscribe to the Tom Parker theory that if you don't agree with the law you don't have to abide by it.

6:20:00 PM  
Anonymous Anonymous said...

Case in point: 2nd Amendment. What part of "shall not be infringed" does the court not understand?

Actually, I don't think the Supreme Court has ever fully addressed the parameters of the Second Amendment, as odd as that may sound. I recall that it had some decision back in the 1930s concerning the government's ability to regulate machine guns, but no real analysis regarding this amendment.

I could be mistaken on that, though.

9:36:00 PM  
Anonymous Anonymous said...

Actually, a half century later, it's clear that most blacks supported forced integration not because they wanted to intermingle with whites but because white people were against it and most blacks hate white people.

12:22:00 AM  
Anonymous Anonymous said...

Thanks for that last enlightened comment, Colonel Tom -- got any extra of those little rebel flags?

7:31:00 AM  
Anonymous Ol'battleaxe said...

Hadrian,

I think the point about the Nazis was that their judges upheld the right of the German government to perpetrate the holocaust. There have been books written on the role of Nazi Judges.

The point is that if you really and truly believe that the Supreme Court is the final word on all things constitutional, then if it decides Jews are no longer people, then so be it-- until we get other judges who disagree.

You don't believe in any higher standard of law and ethics other than that which the Supreme Court declares. So, Hitler was only wrong because he was unsuccessful. If you had been in the Nazi court system, you would have defended the legality of the holocaust-- even if you personally disagreed with the policy.

8:32:00 PM  
Anonymous Ol'battleaxe said...

From http://www.law.umkc.edu/faculty/
projects/ftrials/nuremberg/
Alstoetter.htm#Commentary

Subject: German Judges at Nuremberg

Here are some interesting comments about a German judge who reluctantly supported Hitler because he thought he could do more good on the bench...

"Schlegelberger...served in the Ministry of Justice from 1931-1942. For the last seventeen months of his service, Schlegelberger was Director of the Ministry of Justice. He wrote several books on the law and was called at the time of his retirement, "the last of the German jurists." Schlegelberger argued in his defense that he was bound to follow the orders of Hitler, the "Supreme Judge" of Germany, but that he did so only reluctantly. Schlegelberger pointed out that he did not join the Nazis until 1938, and then only because he was ordered to do so by Hitler. Schlegelberger claimed to have harbored no ill-will toward the Jews. His personal physician, in fact, was Jewish. In his defense, he also stresses that he resisted the proposal that sent "half Jews" to concentration camps. Schlegelberger suggested giving "half Jews" a choice between sterilization and evacuation."

Nice, eh? The writer points out that the big difference between American law and German is that German law "lacked 'higher law' (constitutional or ethical standards) that might be resorted to by judges to avoid the harsh effects of discriminatory laws adopted by the Nazi regime."

But do we really have a "higher law" in America today? It would seem that Hadrian believes that the Constitution is the highest law, but only as interpreted by the "Supreme Judge" Hitler, er uh, I mean "The Supreme Court."

Maybe the charge of "Nazi" is not too strong after all....

8:56:00 PM  
Blogger AttorneyJerald said...

John Adams said, "The Constitution was written for a moral and religious people. It is totally inadequate for the government of any other."

When Adams said, "moral and religious people," he meant a Christian people. The nation was founded by Christians upon Christian principles (regardless of the idiotic arguments of men like Neadow and other atheists or rebels).

Furthermore, no nation will long exist that does not operate under the one true God, the God who created all things both animate and inanimate, the God who ordained government, the God who informed mankind that man was responsible to rule the world for Him, under His rules, the God of the Bible (Oh, I can already see the foolish uninformed arguments against what I have written in this paragraph.)

Blackstone understood this. He wrote:

"This then is the general signification of law, a rule of action dictated by some superior being; * * * But laws * * * denote the rules * * * of human action and conduct. * * *

"Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself, but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct; not indeed in every particular, but in all those points wherein his dependence consists. * * * And consequently, as man depends absolutely on his Maker for everything, it is necessary that he should in all points conform to his Maker's will.

"The will of his Maker is called the law of nature. * * *

"The law of nature, being coeval with mankind and dictated by God Himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. * * *

"This has given manifold occasion for the benign interposition of divine providence; which in compassion to the frailty, the imperfection, and the blindness of human reason hath pleased at sundry times and in divers manners to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found in the Holy Scriptures.

"Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict theses. * * *"

Blackstone understood the Word of God.

"He that ruleth over men must be just, ruling in the fear of God. And he shall be as the light of the morning, when the sun riseth, evan a morning without clouds; as the tender grass springing out of the earth by clear shining after rain." 2 Sam. 23.3-4.

"At what instant I shall speak concerning a nation, and concerning a kingdom, to pluck up, and to pull down, and to destroy it; If that nation, against whom I have pronounced turn from their evil, I will repent of the evil that I thought to do unto them. And at what instant I shall speak concerning a nation, and concerning a kingdom, to build and to plant it; if it do evil in my sight, that it obey not my voice, then I will repent of the good, wherewith I said I would benefit them. * * * And they said, There is no hope: but we will walk after our own devices, and we will every one do the imagination of his evil heart." Jeremiah 18.7-10, 12.

"Why do the heathen rage, and the people imagine a vain thing? The kings of the earty set themselves, and the rulers take counsel together, against the LORD, and against his anotined, saying, Let us break their bands asunder and case their cords from us. He that sitteth in the heavens shall laugh: the LORD shall have them in derision. * * *" Psalm 2.

Every nation is on probation. God makes this perfectly clear in His Word. Sadly, every nation falls. The steps in the downfall of a nation are religious apostasy, moral awfulness, and political anarchy. The United States is in the third stage. The liberal tyrants of the Supreme Court, past and present, supremely exemplify that anarchy.

Because every nation will get worse and worse, the time of Jesus second advent will come. The probationary period will end. Then, he will crush all nations and rule His Kingdom on earth for 1000 years.

I have given you just a taste of truth from God's Word. His Word has the answer to all the foolish attacks on truth. The scorner will reject truth, will not even consider it or investigate it. But "Give instruction to a wise man, and he will be yet wiser: teach a just man, and he will increase in learning." Proverbs 9.9.

11:25:00 PM  
Anonymous Anonymous said...

Why is it so hard for you Constitutionalists to realize that the Supreme Court is not the final authority. As it has been stated countless times in these comments, Congress can Amend the constitution to overturn ANY ruling of the S. Ct. Parker and the rest of you are barking up the wrong tree.

11:31:00 PM  
Anonymous Space Ace said...

Hey Attorney Jared. I can cut and paste too...

"1. The Industrial Revolution and its consequences have been a disaster for the human race. They have greatly increased the life-expectancy of those of us who live in "advanced" countries, but they have destabilized society, have made life unfulfilling, have subjected human beings to indignities, have led to widespread psychological suffering (in the Third World to physical suffering as well) and have inflicted severe damage on the natural world. The continued development of technology will worsen the situation. It will certainly subject human beings to greater indignities and inflict greater damage on the natural world, it will probably lead to greater social disruption and psychological suffering, and it may lead to increased physical suffering - even in "advanced" countries.

2. The industrial-technological system may survive or it may break down. If it survives, it MAY eventually achieve a low level of physical and psychological suffering, but only after passing through a long and very painful period of adjustment and only at the cost of permanently reducing human beings and many other living organisms to engineered products and mere cogs in the social machine. Furthermore, if the system survives, the consequences will be inevitable: There is no way of reforming or modifying the system so as to prevent it from depriving people of dignity and autonomy.

3. If the system breaks down the consequences will still be very painful. But the bigger the system grows the more disastrous the results of its breakdown will be, so if it is to break down it had best break down sooner rather than later.

4. We therefore advocate a revolution against the industrial system. This revolution may or may not make use of violence: it may be sudden or it may be a relatively gradual process spanning a few decades. We can't predict any of that. But we do outline in a very general way the measures that those who hate the industrial system should take in order to prepare the way for a revolution against that form of society. This is not to be a POLITICAL revolution. Its object will be to overthrow not governments but the economic and technological basis of the present society.

5. In this article we give attention to only some of the negative developments that have grown out of the industrial-technological system. Other such developments we mention only briefly or ignore altogether. This does not mean that we regard these other developments as unimportant. For practical reasons we have to confine our discussion to areas that have received insufficient public attention or in which we have something new to say. For example, since there are well-developed environmental and wilderness movements, we have written very little about environmental degradation or the destruction of wild nature, even though we consider these to be highly important.

6. Almost everyone will agree that we live in a deeply troubled society. One of the most widespread manifestations of the craziness of our world is leftism, so a discussion of the psychology of leftism can serve as an introduction to the discussion of the problems of modern society in general.

7. But what is leftism? During the first half of the 20th century leftism could have been practically identified with socialism. Today the movement is fragmented and it is not clear who can properly be called a leftist. When we speak of leftists in this article we have in mind mainly socialists, collectivists, "politically correct" types, feminists, gay and disability activists, animal rights activists and the like. But not everyone who is associated with one of these movements is a leftist. What we are trying to get at in discussing leftism is not so much a movement or an ideology as a psychological type, or rather a collection of related types. Thus, what we mean by "leftism" will emerge more clearly in the course of our discussion of leftist psychology (Also, see paragraphs 227-230.)

8. Even so, our conception of leftism will remain a good deal less clear than we would wish, but there doesn't seem to be any remedy for this. All we are trying to do is indicate in a rough and approximate way the two psychological tendencies that we believe are the main driving force of modern leftism. We by no means claim to be telling the WHOLE truth about leftist psychology. Also, our discussion is meant to apply to modern leftism only. We leave open the question of the extent to which our discussion could be applied to the leftists of the 19th and early 20th century.

9. The two psychological tendencies that underlie modern leftism we call "feelings of inferiority" and "oversocialization." Feelings of inferiority are characteristic of modern leftism as a whole, while oversocialization is characteristic only of a certain segment of modern leftism; but this segment is highly influential. Feelings of Inferiority"

These are excerpts from Ted Kaczynski's Manifesto.

11:39:00 PM  
Anonymous Hadrian said...

As I suspected, the more the Parkerites write, the more they demonstrate how far out of the mainstream their thinking is.

Let’s first turn ol’battleaxe, who somehow believes that our society has entered a time-machine and has wound up in Nazi Germany. First, if we are so akin to the Nazis, I would have thought that we would be wearing swastikas by now – after all, we have been under this system for about 200 years or so. Why is that not the case now? Why are we still in a democratic republic?

Because of the brilliance of our founding fathers to implement a true system of checks and balances. If Congress passes a stupid law, the President can veto. When Richard Nixon attempted to undermine the Constitution, Congress was on the verge of impeaching him, aided by a Supreme Court decisions that Nixon had to turn over the tapes.

(The current problem about domestic spying is troubling. The Bush administration, aided by its friends in Congress, seems determined to pare back our liberties for the sake of “national security. Axe, if you’re worried about Nazis, maybe you should focus your attention there).

What about the Supreme Court? As has been mentioned before, if the Court rendered an opinion so far out of line from the beliefs of the people, the people retain the ability to reverse that decision by means of an amendment to the Constitution.

But here’s what’s most ridiculous about Axe’s argument. His imaginary horrible is the direct opposite of our experience over the past generation. He writes:

The point is that if you really and truly believe that the Supreme Court is the final word on all things constitutional, then if it decides Jews are no longer people, then so be it-- until we get other judges who disagree.

To the contrary, over the past 50 years the United States Supreme Court has been the greatest champion of the rights of individual citizens of the nation.

It was the Supreme Court that told southern states that they could not enforce their Nazi-like laws against our black citizens. Make no mistake, Hitler’s crowd would have admired some of the laws on the books here in Alabama to deny blacks the rights that whites enjoyed. The bigotry toward blacks was no different in kind from the Nazis’ bigotry toward the Jews.

Congress didn’t step in to say no. Neither did a series of presidents. It was a group of justices – men like Earl Warren and Hugo Black – which stopped this un-American regime. By the way, read Cooper v. Aaron – the case the Parkerites seem to hate so much. Don’t just read snippets about that case – go to a law library, pull down the volume of the Supreme Court reporter that has the decision, and read it in its entirety. It’s a good example of the noble fight the Court waged in the 1950s against the forces of hatred.

In the 1960s, the Court focused much of it attention on defending the rights of criminal defendants – now that doesn’t sound like the Nazis, does it? The Miranda decision is perhaps the most famous example. You remember that one? The one that says that police cannot use a confession of a criminal defendant unless that defendant has been advised of his constitutional rights. Another is Gideon v. Wainwright – there, the Supreme Court ruled that state courts are required by the Constitution to provide lawyers for defendants in criminal cases unable to afford their own attorneys.

Over the past few years, much of the controversy has surrounded the Supreme Court’s decisions on privacy. Of course, the key case is Roe v. Wade, which established that most laws against abortion implicate a woman’s constitutional right to privacy, overturning laws outlawing or restricting abortion. In other word, Big Brother was told hands off a woman’s body – she gets to decide.

Roe was preceded by Griswold v. Connecticut, a landmark case in which the Supreme Court ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives. The Supreme Court invalidated the law on the grounds that it violated the "right to marital privacy."

There have been more recent decisions in which the Supreme Court has told Big Brother government to get out of the bedroom. In Lawrence v. Texas, the Court struck down the criminal prohibition of homosexual sodomy in Texas. Remember the facts there – the petitioners were found having consensual anal sex in a Houston apartment when a sheriff's deputy entered the unlocked apartment with his weapon drawn, arresting the two. Sounds like the gestapo, doesn’t it?

Such decisions make clear that if there is an antithesis to the bigotry and brutality of Nazi Germany, it is the U.S. Supreme Court, which has served to protect our citizens from over-reaching police powers of the federal and state governments.

That’s why I think Axe is barking up (or chopping down) the wrong tree.

Don’t have much to say to attorney jerald, who appears to reject Jefferson’s idea of a wall between church and state. I agree that the Founding Fathers were, on the whole, religious Christians, although be wary of painting with a broad brush. John Adams appears to have been a very devout man. Ben Franklin, on the other hand, not so much. But yes, at the time the Constitution was written, America was a Christian society – there’s no denying that. So why doesn’t the Constitution say anything about God? The only reference in the Constitution to religion (other than the First Amendment) is Article VI which provides that “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Jerald then states:
Furthermore, no nation will long exist that does not operate under the one true God, the God who created all things both animate and inanimate, the God who ordained government, the God who informed mankind that man was responsible to rule the world for Him, under His rules, the God of the Bible (Oh, I can already see the foolish uninformed arguments against what I have written in this paragraph.)

OK, I’ll bite – jerald, you tell me why the following is “foolish and uninformed”: You do not cite any authority for this declaration and it is obviously just your personal opinion. The problem is that history belies the statement. I assume that you are talking about the Christian God (although I question whether many of the Moore/Parker supporters actually follow the message of Christ – I note your quotes are from the Old Testament, by the way). In any event, there are quite a few countries that are not so “enlightened,” as you might say, that appear to do pretty well. Cultures in Asia, in particular, have lasted for centuries.

I simply reject the notion that a society must be led by a Christian government – in the sense of an officially established religion – in order to survive. Such a view would have been anathema to the Founding Fathers.

As to Blackstone, what is it about this guy that make you all crazy? You sound like Roy Moore, who stays up late at night to memorize everything Blackstone said. Blackstone is not the source of our law, and we need to keep in mind who the guy was. The following snippets from Wikipeida:

Sir William Blackstone, (July 10, 1723 – February 14, 1780) was an English jurist and professor who produced the historical treatise on the common law called Commentaries on the Laws of England, first published in four volumes over 1765–1769. It had an extraordinary success, said to have brought the author £14,000, and still remains the best general history of the subject.

In addition to the Commentaries, Blackstone published treatises on Magna Carta and the Charter of the Forests. In 1761 he won election as a Member of Parliament for Hindon and "took the silk" as a king's counsel.

Blackstone wrote his books on common law shortly before the United States Constitution was written. The terms and phrases used by the framers often derived from Blackstone's works.

US courts frequently quote Blackstone's Commentaries on the Laws of England as the definitive pre-Revolutionary War source of common law; in particular, the United States Supreme Court quotes from Blackstone's work whenever they wish to engage in historical discussion that goes back that far, or further (for example, when discussing the intent of the Framers of the Constitution). US and other common law courts mention with strong approval Blackstone's formulation: "Better that ten guilty persons escape than that one innocent suffer" -- although he did not first express the principle.

Blackstone was not a man of original mind, nor was he a profound lawyer; but he wrote an excellent style, clear and dignified, which brings his great work within the category of general literature.


There is he – no more and no less. I’m sure he was influential, but the Founding Fathers were more influenced by other philosophers of the day, particularly John Locke.

I’m done – must go to my day job.

6:22:00 AM  
Anonymous Anonymous said...

Thanks, again Hadrian. I can see why Rocky loved you so much.

9:50:00 AM  
Anonymous ol'battleaxe said...

Hadrian,

You did a very good job of avoiding the real point of my post. Although I don't agree with much of what you said about the Supreme Court over the last 60 years, I am perfectly willing to concede that point if it will get us back to my original point. The "fact" that the Supreme Court has used its power in a "good way" doesn't take away the fact that it is all powerful under your system.

Your blindness is shocking. The Amendment process is null and void if the Supreme Court gets to be the final word on interpreting the constitution.

If you make a contract with someone to cut your lawn, and the lawn boy is the ONLY person with absolute power of interpreting the contract, then he could rob you blind and claim that he fulfilled his end of the bargain! If you sought to amend the contract but still left all powers of interpretation with the lawn boy, that little brat could still rob you blind.

Of course, you would never agree to such terms in the first place. Well, what makes you think our founding fathers did coming, as they did, from just fighting a war against "the Divine Right of Kings"???

Really, you lawyers scare me.

9:58:00 AM  
Anonymous ol'battleaxe said...

Besides, you avoid the whole issue of Article 3, sec 2 of the Constitution which allows congress to limit the jurisdiction of the courts by regular legislative action-- which has been done many times in the past. You don't have to pass an amendment.

Funny how you lawyers leave this out. I think you ignore it because it is a real check on the powers of judicial review. Does this scare you?

10:06:00 AM  
Anonymous Anonymous said...

Battleaxe, not sure why you disdain lawyers so much. Tell me, do you often debate arcane medical issues with doctors? Do you argue with accountants about nuances of GARP? Do you discuss rocket science with NASA engieneers? Why not?

Because you have not been trained enough to engage in any knowledgable debate on such subjects. Law is the same way. You presume to enter into discussions about the judicial process with no training or background about our legal system.

A little bit of knowledge is a dangerous thing.

10:26:00 AM  
Anonymous YouCan'tHandleTheTruth said...

It certainly scares me to think that Tom DeLay and his buddies have the final word on what the Constitution says. The Founding Fathers intentionally insulated the Supreme Court (and the rest of the federal judiciary) from public opinion by giving them life terms, precisely because the greatest threat to civil liberties comes not from an independent Court, but from the tyranny of mob rule.

10:31:00 AM  
Anonymous 'olbattleaxe said...

Anonymous,

Your position would require that no one get married until they practiced sex for several years...

Or no one drive a car unless they built it...

But this is beside the point. The issues we are discussing are not rocket science. Only lawyers have a hard time with them apparently.

Also, being an American makes me, as a voter, the highest source of political power. So, I think I'm qualified to participate in a political discussion.

You stuck up snobs would require voters to have a law degree before they voted. Or, to make it easier, you would just eliminate things like elections and opt for political appointments controlled by the philosopher kings. Oh, I forgot…you’re already doing it with elected judges in Alabama....

11:50:00 AM  
Anonymous Anonymous said...

Also, being an American makes me, as a voter, the highest source of political power. So, I think I'm qualified to participate in a political discussion.

Unquestionably, you have that right. The real issue is whether you exercise that right responsibly.

You stuck up snobs would require voters to have a law degree before they voted.

Nope sorry. We're for voting rights for all adult citizens. Any such law restricting these rights would likely be struck down by your ol' bugaboo, the U. S. Supreme Court.

Or, to make it easier, you would just eliminate things like elections and opt for political appointments controlled by the philosopher kings. Oh, I forgot…you’re already doing it with elected judges in Alabama....

Now see, you've gone and said something that's just so silly as to be incomprehensible. Unlike federal judges, our state judges --such as Parker's colleagues whom he railed at so much -- are chosen by We, the people (I know, it should be "us" rather than "we" -- but "us the people" doesn't sound so good). You know that as reflected in your statement. But are you criticizing how we pick our judges? Are you against all judges? Should we not have any judiciary at all?

12:16:00 PM  
Anonymous lawstudent said...

It's been said of courtroom practice:
If you don’t have the facts, argue the law.
If you don’t have the law, argue the facts.
If you don’t have either the law or the facts, then pound the table.

Those on both sides resorting to personal attacks and insults seem to fit in the third group.

Several people have posted challenges similar to this one:

“if you want to divest the federal courts of the power to decide what our Constitutional rights and duties are, to whom would you give that power? And how would such a system work?”

Those who protest that judicial supremacy is necessary under our current system (because someone must have the final say) are certainly correct given the dominant view of the SCOTUS towards the constitution over at least the last 50-100 years. However this system has developed from a severely warped understanding of the role not only of the Court under the Constitution, but also of the Constitution itself. A system where someone must have final authority to interpret the Constitution is only necessary if its not apparent what the Constitution means in the first place, or if the Constitution is so complex that only the nine most elite legal minds in the country are able to understand what it means. The dominant view recently has been that one cannot interpret the Constitution without a law degree and years of practice. This view, however, is completely at odds with the text of the Constitution and the history of its enactment.

For good reason, the Constitution starts with “We the people of the United States . . . ” and not “We the elite legal minds of America who are the only ones capable of understanding this document . . .” This document is one that was written to be readily accessible and understandable to the average educated person in America, and indeed it is. The colonies would have never agreed to bind themselves to a union and to a document such as this if they didn’t plainly understand what it meant. It is irrational to think that a document with various “emanations and penumbras” would have ever garnered the support of individuals who knew too well the terror of vast interpretive authority vested in the hands of a tyrant.
No, the constitution enacted by the thirteen colonies was (and is) one with a fixed, simple meaning that anyone with a basic education could understand. Those who believe that some sort of final authority on Constitutional interpretation, whether it be the Supreme Court or the Prime Minister of Kazakhstan, is necessary for our system to work have lost sight of these facts. If the Constitution doesn’t have a fixed meaning, if it changes with cultural mores, and if it is possible to continually discover in it new rights no where mentioned in the text, then yes, for the sake of order we do need someone to have the final authority to declare what it in fact means. But, if on the other hand, we return to a view of the constitution as having a plain, fixed meaning ascertainable directly from the text of the constitution, as it was enacted by the people of this country, then we do not need to vest interpretive authority in an elite body of lawmakers.

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