Op-Ed: Alabama Senator-in-Waiting Roy Moore and Constitutional Anarchy

By Chris Dunn

Last week’s Alabama primary victory by Roy Moore over Luther Strange to become the Republican candidate for a United States Senate seat garnered enormous attention because of the political machinations surrounding the contest. President Trump traveled to Huntsville for a September 22 rally supporting Strange, only to be followed three days later by former White House strategist Steve Bannon leading a rally outside Mobile in support of Moore. The day after the Bannon rally, Moore cruised to victory.

But Moore’s win is also big news for the world of constitutional law, and not because he seeks the Senate seat Jeffrey Sessions held before becoming Attorney General. In Moore’s view, elected officials are free – indeed, obligated -- to disregard federal constitutional rulings they deem illegitimate, the very position that nearly led to armed conflict with southern states in the 1950s in the aftermath of the Supreme Court’s ruling in Brown v. Board of Education.[1] Moore’s defiant approach to the federal courts has surfaced most dramatically around two hot-button issues: a Ten Commandments monument and gay marriage.

Ten Commandments Monument

In January 2001 Moore was popularly elected as Chief Justice of the Alabama Supreme Court. Having pledged to “restore the moral foundation of our law” and having campaigned as the “Ten Commandments Judge,” it was no surprise that seven months after his election Moore unilaterally arranged for a 5,280-pound granite monument setting out the Ten Commandments to be installed as the centerpiece of the rotunda of the Alabama State Judicial Building, which houses the Alabama Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, the state law library, and the state’s Administrative Office of the Courts.

Three lawyers sued, and the United States District Court for the Middle District of Alabama held that the display violated the Establishment Clause of the First Amendment and ordered Moore to remove it in December 2002. He refused to do so and instead appealed to the Eleventh Circuit, arguing in part that the federal courts lacked authority to order him to remove the monument because he had an independent right to determine its constitutionality. Invoking the desegregation fights of the 1950’s, the Court of Appeals forcefully rejected that argument in a July 2003 opinion:

The Chief Justice’s brief reminds us that he is “the highest officer of one of the three branches of government in the State of Alabama,” and claims that because of his important position, “Chief Justice Moore possesses discretionary power to determine whether a court order commanding him to exercise of [sic] his duties as administrative head is consistent with his oath of office to support the federal and state constitution.  . . . .  Chief Justice Moore’s argument takes his obligation and turns it into a license. To say the least, there is nothing in law or logic to support his theory.

The clear implication of Chief Justice Moore’s argument is that no government official who heads one of the three branches of any state or of the federal government, and takes an oath of office to defend the Constitution, as all of them do, is subject to the order of any court, at least not of any federal court below the Supreme Court. In the regime he champions, each high government official can decide whether the Constitution requires or permits a federal court order and can act accordingly. That, of course, is the same position taken by those southern governors who attempted to defy federal court orders during an earlier era.

Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case.

Moore did not appeal the Eleventh Circuit’s ruling but steadfastly refused to order removal of the monument. The controversy was defused only after the other justices of the Alabama Supreme Court ordered the monument’s removal in August 2003.

That same month Moore was charged with violating his ethical duties for his defiance of the federal court orders, and in November 2003 a state ethics panel recommended he be removed from office permanently. Five months later, a temporary Supreme Court specially constituted because all of the court’s regular members had recused themselves unanimously adopted that recommendation,[2] and Moore was removed from office. Egregious as Moore’s conduct had been, however, this would not mark the end of his judicial career.

Gay Marriage

In November 2012 Moore again was elected as the Alabama Supreme Court’s Chief Justice. Dramatic as had been the earlier fight over the Ten Commandment’s monument, a more momentous federal-court controversy was on the horizon: gay marriage in Alabama.

In January 2015, as federal courts around the country were recognizing that the federal Constitution protected same-sex marriage, a federal judge in Alabama held that the Alabama statutes barring same-sex marriages were unconstitutional and enjoined their enforcement.[3] In an effort to negate the injunction, Moore issued an administrative order in February 2015 purporting to bar state judges from honoring the injunction: “Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with Alabama law. Moore argued, not entirely without merit, that a District Court ruling about the constitutionality of Alabama’s marriage laws did not bind state officials not party to the case.

That argument evaporated in June 2015, when the United States Supreme Court held in Obergefell v. Hodges[4] that the federal Constitution protects same-sex marriage. Undeterred, Moore issued a new administrative order in January 2016 instructing the state’s probate judges that they had a “ministerial duty” not to issue any marriage licenses contrary to the state’s statutory ban on same-sex marriage.

Two months later, however, the Alabama Supreme Court dismissed an effort to bar implementation of Obergefell in Alabama.[5] That ruling prompted an 18,000-word opinion from Chief Justice Moore declaring war on judicial review and the Supremacy Clause.

Chief Justice Moore immediately attacked the legitimacy of the Supreme Court’s Obergefell ruling: “Based upon arguments of “love,” “commitment,” and “equal dignity” for same-sex couples, . . . five lawyers have declared a new social policy for the entire country. In reality, the Obergefell majority presumes to amend the United States Constitution to create a right stated nowhere therein. That is a lawless act.” Moore then reviewed the dissenting opinions of Chief Justices Roberts and Associate Justices Thomas, Scalia, and Alito and how they “convincingly detail the illegitimacy of the majority opinion.”

Moore next asked, “Does an opinion of the United States Supreme Court, like Obergefell, which blatantly affronts the Constitution, automatically become the ‘rule of law’ and the ‘law of the land?’” He acknowledged the Supremacy Clause but offered a view of it that would upend our existing constitutional order: “By the plain language of Article VI, state judges are bound to obedience to the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, not to the opinions of the United States Supreme Court.” Indeed, Moore contended he had an affirmative duty to disregard Supreme Court decisions he deemed unlawful, contrasting his position with the “following the orders of superiors” defense invoked by Lt. William Calley in his court martial arising out of the My Lai massacre in Vietnam. According to Moore,

If, as an individual who is sworn to uphold and support the United States Constitution, I were to place a court opinion that manifestly and palpably violates the United States Constitution above my loyalty to that Constitution, I would betray my oath and blatantly disregard the Constitution I am sworn to uphold. Acquiescence on my part to acts of “palpable illegality” would be an admission that we are governed by the rule of man and not by the rule of law. Simply put, the Justices of the Supreme Court, like every American soldier, are under the Constitution, not above it.

Consistent with this philosophy, Moore then devoted a section to “the fallacy of judicial supremacy,” concluding with the declaration that “we should reject the conversion of our republican form of government into an aristocracy of nine lawyers.”

 Notwithstanding Moore’s obstructionism, gay marriage ultimately proceeded in Alabama, but his defiance prompted a second ethics complaint for the administrative orders he had issued. In May 2016 Alabama ethics authorities suspended Moore, setting up another round of litigation with the state’s top judicial authorities. Ironically, Moore first went into federal court seeking an injunction against the disciplinary proceedings, but that effort failed in August on abstention grounds.[6] In September 2016, ethics authorities sustained the charges and suspended Moore for the balance of his six-year term. And this past April the Alabama Supreme Court, again specially constituted because all of its other regular members recused themselves, upheld that suspension, effectively ending Moore’s tenure as Chief Justice.[7]

Looking Forward

Roy Moore’s second removal from his Chief Justice position would make for a colorful coda to a troubling story in Alabama if Moore were headed into retirement from public life. But Moore is not retiring and may well be a member of the United States Senate come January 2018.

In normal times, the prospect of a single federal-court obstructionist in the Senate would be cause for little concern. These, however, are hardly normal times in our nation’s capital, as we face an increasingly angry and extreme political dynamic. If Moore does join the Senate, we can expect to hear a lot more about the right, indeed the obligation, of federal and state officials to refuse to honor controversial rulings from the federal courts, including the Supreme Court.

This article was originally published in the New York Law Journal on Oct. 5, 2017.