The Alabama Court of the Judiciary suspended Chief Justice Roy Moore for the remainder of his term in office. The focus of the charges was a January 2016 administrative order, in which Moore advised the state’s probate judges that the court’s March 2015 (pre-Obergefell) mandamus order prohibiting issuance of marriage licenses to same-sex couples remained in effect. In part, Moore stated that the judgment in Obergefell bound only the parties and only declared unconstitutional the marriage-equality bans in four states, thus it did not undermine SCoAL’s earlier orders.
The judiciary court rejected those arguments, relying on long quotations from Cooper v. Aaron and the view that a SCOTUS declaration of constitutional meaning is, without more, binding on everyone everywhere. So Moore’s order/advice regarding conduct by probate judges in conflict with the holding of Obergefell violates various judicial canons. The court’s analysis of Cooper is inconsistent with the model of judicial departmentalism I have been urging–holdings judicial opinions do not formally bind anyone beyond the parties, including lawyers and public officials, until they are reduced to judgments against those individuals, which they will be because the holdings bind lower courts. The decision also overreads Cooper by forgetting what the Court really was upholding against state resistance–not Brown, but a Brown-based lower-court injunction. Plus, it was unnecessary in this case–Moore’s real violation here was ordering/advising probate judges to violate not Obergefell, but a federal district-court order to which every probate judge was party and unquestionably bound that was made enforceable in light of Obergefell. That judgment gets passing reference, but the real focus was how Moore disregarded Obergefell.
Oh well. It is tempting to say Moore’s judicial career is over. But I have no doubt he could win reelection to the court if he tried.
Further Update: This is among the most inaccurate things I have read by someone with a law degree. Writing about Moore trial:
This is the heart of the issue. According to Moore and Staver, the decisions of Alabama’s highest court are not subservient to those of a federal district judge. This goes against 200-plus years of constitutional interpretation that does put state courts below federal ones, of course.
“The state courts and the federal courts have co-equal authority,” Staver argued in a phone interview before the trial. “And one does not have to follow the other if they are making a decision on the U.S. Constitution.” This is not how the Supremacy Clause of the U.S. Constitution works, though.
Just, no. State courts are not “below” lower federal courts; they are co-equal courts that are all inferior tribunals to SCOTUS. Lower-federal court precedent is not binding on state courts or state judges (unless the state court chooses to be bound by that precedent). State courts and lower federal courts do have co-equal authority as to federal law. Congress was not obligated to even create lower federal courts; had it not done so, state courts would have been the only courts interpreting federal law other than SCOTUS.
We can debate departmentalism and the binding effect of SCOTUS precedent (as opposed to judgments) on non-judicial actors. But to say that state courts are inferior to lower federal courts reflects a complete misunderstanding of the judicial structure in the United States.
Posted by Howard Wasserman on September 30, 2016 at 02:31 PM
Comments
In May (a month before Obergefell), Judge Granade certified a defendant class action, so her injunction barred every probate judge in the state from refusing to issue marriage licenses to same-sex couples. She stayed that class injunction pending Obergefell, then lifted the stay in July. At that point, in ordering/advising probate judges not to issue licenses, Moore was ordering/advising them to violate a federal court order. And that is sanctionable.
Note, by the way, that my argument does not even depend on Obergefell–had Judge Granade not stayed her class injunction, Moore could have been sanctioned for ordering his underlings to violate it, even without SCOTUS precedent behind it.
Posted by: Howard Wasserman | Oct 4, 2016 1:38:18 PM
If the Slate article was wrong, and state courts are not required to “…follow a district court’s interpretation of federal law in all cases involving all parties,” then what exactly was Judge Moore’s violation with regard to the Granade order? Wouldn’t the Alabama Supreme Court’s interpretation carry the same weight as the Federal District Court, absent a decision from SCOTUS specific to that state and those parties? I hope I am not seriously misunderstanding your view of departmentalism, but I believe you are arguing that Obergefell only binds Judge Granade, and not Judge Moore.
Posted by: Michael | Oct 4, 2016 1:07:02 PM
Sure, there are situations in which a federal district court exercises supervisory or review power over a state court in individual cases. But: First, that comes when Congress expressly grants that power; it is not inherent in the structure or relationship between the courts. Second, it is case-specific, often when the federal court is protecting its own decision making authority in a case. Third, the author was not talking about that; she was arguing that, under the Supremacy Clause, state courts must follow a district court’s interpretation of federal law in all cases involving all parties. And that is wrong.
Posted by: Howard Wasserman | Oct 3, 2016 7:00:30 AM
Really? District Courts can’t push around state courts under, say, All Writs?
Posted by: Jack | Oct 2, 2016 11:42:42 PM
I wasn’t clear. I meant passing reference in that part of the opinion. Agreed the court did talk about the Granade order.
Posted by: Howard Wasserman | Oct 1, 2016 8:52:39 AM
Yes, those two or so pages on Cooper are misguided. As the rest of the opinion repeatedly makes clear, however, Moore is being sanctioned for encouraging (at best) or directing probate judges to violate the district court injunction–and for not even warning those judges about that injunction. That injunction doesn’t get mere “passing reference”–in the analysis alone, it’s referenced at least 18 times.
Posted by: Marty Lederman | Oct 1, 2016 6:35:46 AM
I believe Roy Moore is ineligible, because of his age, to run for reelection after his suspension ends. So absent some action by the legislature, Moore’s career on the state supreme court is effectively over.
Posted by: Alabama Prof | Sep 30, 2016 2:58:32 PM