Alabama’s Justice Parker Takes On State Supreme Court
Alabama Supreme Court Associate Justice Tom Parker is a unique jurist, who has found himself embroiled in the center of what is perhaps the most vital ideological battle of the century - defining the proper role of the courts in shaping the very fabric of our society.
Appointed by former Alabama Supreme Court Chief Justice Roy Moore to be the deputy administrative director of courts - also serving as the legal adviser to the chief justice, and filling in for a public information officer - Parker was an intimate witness to and spokesman for Moore’s nationally touted battle to keep a Ten Commandments monument in the rotunda of the judicial building.
Moore lost his famous fight in November 2003 when the Alabama state Court of the Judiciary, which reviews ethics complaints against judges, ordered Moore removed from office for defying a federal order to remove the display.
Not a man to accept a defeat over hallowed principle, Parker figuratively took the baton from his mentor Moore and ran for the state Supreme Court against an incumbent who voted to remove the Ten Commandments monument and supported the ouster of Chief Justice Moore. He won in November 2004 and has been serving since January of 2005.
His campaign slogan: “Standing Up for What We Believe!”
It didn’t take long for the new associate justice to stand up.
On Jan. 1, 2006, the Birmingham News published a commentary by Parker in which he criticized an Alabama Supreme Court decision that let the rapist and murderer of a pregnant woman off of death row due to a recent U.S. Supreme Court opinion (Roper v. Simmons) based in part on an un-ratified United Nations treaty.
The high court in Roper had cited the treaty as evidence of the evolution of social mores that now, pronounced the majority, dictate that executing a person who was a minor at the time of his or her offense is tantamount to constitutionally proscribed “cruel and unusual punishment.”
The majority wrote: “The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court’s determination that the penalty is disproportionate punishment for offenders under 18.”
Parker was immediately attacked for his position and, shortly afterwards, an attorney with long ties to the American Civil Liberties Union filed a complaint against him with the Alabama Judicial Inquiry Commission, seeking to have Parker disciplined for both his public criticism of the liberal majority of the U.S. Supreme Court and of the way his colleagues on the bench, by rote, followed the High Court decision in Roper.
The battle that is emerging is not so much about that solitary complaint — although it could result in his dismissal — as it is about the rising tide of public chagrin with the courts in general and the Supreme Court in particular.
When NewsMax caught up with Justice Parker, he was sitting at his desk in that very building that once contained the Ten Commandments.
Perhaps fittingly, on prominent display in his chambers, are various renderings of Daniel in the Lion’s Den. There’s the statue that sits behind his desk - a reproduction of a famous 18th Century original masterpiece by a Brazilian artisan.
The biblical icon is repeated in two framed prints of Daniel in the Lions’ Den by European artist Briton Riviere. Depicted is an older Daniel, who appears completely calm in the presence of the beasts. Between the two prints, Daniel 6:22 is quoted:
“My God sent His Angel and shut the lions’ mouths, and they have not hurt me, because I was found blameless before him.”
Whether he will be in the end held blameless is one thing, but Parker has perhaps assumed the role of a latter day older Daniel.
Belying the grey mustache and thinning hair are eyes, which though masked by glasses, are alert and youthful.
Despite Parker’s warm and affable manner, NewsMax is a little daunted when challenging the Vanderbilt University School of Law alumnus and former fellow at Brazil’s University of Sao Paulo School of Law to explain why his brand of activism is any different from the judicial activism he decries:
“Sir, former U.S. Supreme Court Justice Robert H. Jackson once famously remarked, ‘We are not final because we are infallible, but we are infallible only because we are final.’ Certainly, there is a difference between, for instance, a state legislature enacting a bill inconsistent with Roe v. Wade (the landmark abortion case), knowing it will prompt an appeal avenue to the U.S. Supreme Court, and a state supreme court — like your Alabama Supreme Court, which is itself sworn to uphold the Constitution — flouting the U.S. Supreme Court to gain the same end?”
There’s not time for a breath before the incisive Parker slices and dices the long-winded question.
“That is exactly how Roper v. Simmons came about,” Parker fires back. “The Missouri state Supreme Court ruled contrary to the U.S. Supreme Court rulings re applying the death penalty to minors.”
For sure, Parker is correct. Just 16 years before the landmark Roper case, the U.S. Supreme Court had concluded in Stanford v. Kentucky that the imposition of capital punishment on an individual for a crime committed at 16 or 17 years of age did not constitute cruel and unusual punishment under the Eighth Amendment.
The Missouri Supreme Court set aside Simmons’ death sentence in favor of life imprisonment without eligibility for release. It held that, although Stanford v. Kentucky rejected the proposition that the Constitution bars capital punishment for juvenile offenders younger than 18, under its own analyses a national consensus has developed against the execution of those offenders since Stanford.
The U.S. Supreme Court majority agreed with the Missouri Supreme Court and affirmed their decision.
“Read (Associate Justice Antonin) Scalia’s dissent in Roper,” Parker admonishes NewsMax.
Research brings up a salient Scalia remark: “To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always held that ‘it is this Court’s prerogative alone to overrule one of its precedents.’”
But whatever polemics issued forth from the upset Scalia, Parker outdoes him:
“The proper response to such blatant judicial tyranny would have been for the Alabama Supreme Court to decline to follow Roper in the Adams case. By keeping Adams on death row, our Supreme Court would have defended both the U.S. Constitution and Alabama law (thereby upholding their judicial oaths of office)…
“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.’”
Parker, who always carries a copy of the U.S. Constitution, explains to the uninitiated where exactly he is coming from.
He cites from Article 6:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”
Parker uses the quote from the sacred document to argue the premise that is at the heart of his frustration with his own Alabama Supreme Court’s kowtowing to the Supremes in Roper – decisions by the Supreme Court are not, according to his original reading of the Constitution, the “final law of the land.”
“Courts are not supposed to legislate, so why do we use the term ‘law’ in relation to court opinions?” Parker queries NewsMax. “It is the oath to the Constitution that we must show our fidelity to. Otherwise we are just rubber stamps and we have substituted the precedents of the U.S. Supreme court for the law of the land.”
He explains how the Alabama Supreme Court in its rote application of Roper to the Adams death appeal case lost, in his opinion, a last golden opportunity to give the Supremes an opportunity to revisit the Roper precedent (particularly with Samuel Alito and John Roberts now on the bench, both of whom have said during confirmation hearings that they are not fans of foreign precedents).
“In every other case that this court [Alabama Supreme Court] sees [on the issue of minors and capital punishment],” Parker says, “Roper v. Simmons will have been addressed by a lower court — and not appealed on that basis.”
Parker takes a moment to review the lurid facts of Renaldo Adams’ crime.
“He broke into a house before dawn; held the husband and wife at knife point and demanded money; and when the husband could not find enough in the home, he threatened the wife with death…”
While the husband was away to get more money from an ATM and as his wife remained a hostage, Adams “sliced and raped this pregnant woman.” The couple’s small children were also present in the house.
The husband returned with the police, who found fresh blood on Adams’ clothes after subduing him.
When asked if he was getting support for his bold stand from across the country, Parker laments that it is the “older attorneys who were educated in law school in the 60s and before” who are most sympathetic to his cause. Those law grads from 70s and on, he explains, have been too long “saturated with misconceptions.”
Bryan Stevenson, director of the Equal Justice Initiative, which represents indigent defendants and prisoners in Alabama, certainly represents the unsympathetic quarter:
“There is fear that he will not follow Supreme Court precedents,” says Stevenson. “Judges express dissent or disapproval all the time, but they apply decisions they do not agree with. The idea that a judge can refuse to follow a decision he does not like seems to be the very definition of the kind of judicial activism he criticizes.”
As to whether or how he has made peace with his fellow jurists on the Alabama Supreme Court:
“Any judge has to have a thick skin,” Parker says. “We’ve had our polite discussions about it. Those were done in judicial conferences and are confidential.”
It should be noted that Parker recused himself from hearing the Adams death case, since he had had a role in the prosecution.
As to the percolating complaint filed against him, he explains that the 42-day period from date of filing to the decision whether to open an investigation is still running. A panel will have to wrestle with claims that Parker by his comments has indicated that he may not apply the law of the land on the bench and that his conduct damages the reputation of the courts -– something a judge is not supposed to do.
As to the former charge, Parker calls it “frivolous” because it relies on “what an ACLU attorney notes is the law of the land.” As to the latter, Parker reminds NewsMax that speech is not conduct, and that a slew of cases have protected a judge’s right to free speech.
Meanwhile, as the clock may very well be ticking on his days in judicial robes, this man of God trusts in a greater power to see him through what ever trials are ahead. A quick grasp of Parker, the man, can be found in some of the words he spoke at his swearing-in:
“The very God of Holy Scriptures, the Creator, is the source of law, life, and liberty. It is to Him, not evolving standards or arbitrary pronouncements of judges, that the leaders of every nation owe their ultimate allegiance…
“May we (as judges) boldly proclaim that it is God — Jesus Christ — who gives us life and liberty. May we, as justices who have taken oaths to our God, never fear to acknowledge Him. And may the Alabama Supreme Court lead this nation in our gratitude, humility, and deference, to the only true source of law, our Creator…”
On the other side of what can be described as nothing less than a yawning divide is the man who filed the complaint against Justice Parker, attorney Joel Sogol, who once made these remarks at a Freedom From Religion Foundation convention:
“I’d like to extend an invitation for you to come to Alabama if you get really depressed. We could call it ‘The land that time forgot.’ Come to Alabama, where Gideons are still passing out bibles in schools, where it seems every principal, vice principal and school counselor is a preacher on the side and is praying before student assemblies, football games, basketball games and any place else they can get student gatherings, where during the summer some school systems will give students public school credit to attend bible class and church…”
Parker says that his criticism has been limited to the use of foreign law by the Court, but he does not balk at NewsMax’s question whether his current fight is but part and parcel of a system-wide cancer.
“Well, do you want to go there?” the justice asks rhetorically before citing a recent poll by the American Bar Association that showed a “growing lack of public confidence” in the U.S. Supreme Court.
That survey conducted in Sept. 2005 by the ABA Journal eReport showed that more than half of Americans are angry and disappointed with the nation’s judiciary.
A majority of the survey respondents agreed with statements that “judicial activism” has reached the crisis stage, and that judges who ignore voters’ values should be impeached. Nearly half agreed with a congressman who said judges are “arrogant, out-of-control and unaccountable.”
He notes the Supremes’ call in Lawrence v. Texas, which forged new Constitutional protections for homosexual activity; the Kelo case, which permitted eminent domain merely to increase local tax revenues; and the Terri Schiavo case where the Court rejected pleas to intervene and save the Florida woman said to be in a vegetative state.
Parker, who founded the Alabama Family Alliance (now the Alabama Policy Institute) and Alabama Family Advocates, has served four Alabama Attorney Generals, where he handled death penalty cases, criminal appeals, and constitutional litigation.
The man, who throughout his legal career has fought to defend the unborn, to protect the rights of parents to home educate their children, and to defeat judge-ordered tax increases, seems calm and resolute in the face of his latest challenge.
About his old boss, Moore, Parker simply says, “He was willing to risk everything.”
Parker may be set on a similar course of collision with that “evolving” world the supremes have somehow tapped.
This is the man who summed up the state-sanctioned death of Terri Schiavo thusly:
“Ultimately, Terri’s unjust death is the result of public officials lacking moral courage and fearing man rather than God. But He sees their deeds and will call them to account: ‘Woe to those judges, who issue unrighteous decrees,’ the Scripture says in Isaiah 10:1, ‘and to the magistrates who keep causing unjust and oppressive decisions to be recorded.’”
As the interview concludes, one of Parker’s staff attorneys, David Linton, is anxious that the real word gets out on his boss.
“You know,” Linton says wistfully, “he doesn’t fit into the right boxes … he speaks Portuguese and Spanish; he’s the most internationally experienced member of the court, yet he despises the use of foreign law.
“He’s the most considerate person I’ve ever met — always thinking about how he can serve the other person. I’ve never known a person with his level of humility.”
Recalling the not-so-long-ago run for the position of associate justice, Linton says, “Most judges try to avoid controversy when they run; Parker is different; he talked about his values – and the people listened.”
Linton hopes that the people will be listening now.
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