Asked about allegations Republican Senate candidate Roy Moore dated and engaged in appropriate conduct with teenage girls several decades ago, Alabama state senator Dick Brewbaker commented, “I do not buy the idea that suddenly because it’s now the U.S. Senate, she felt like she had to come forward. I mean, come on. He’s run for governor, and he’s been elected to the highest court in the land twice.” This is one of the main defenses of Moore—that he’s a longstanding public figure suddenly besmirched by allegations about four-decade-old events. And it is certainly true Roy Moore was twice elected to the Alabama supreme court. What Brewbaker neglected to mention is that in both cases, Moore was removed from office.
On January 15, 2001, Roy S. Moore was sworn in as chief justice of the Alabama supreme court. He promised to “support the Constitution of the United States, and the Constitution of the State of Alabama” and to “faithfully and honestly discharge the duties” of his office. Although Moore had been elected to a six-year term, he would be removed from the bench in 2003.
Shortly after assuming office, Moore commissioned for the rotunda of the state supreme court a monument to the “moral foundation of law” depicting, among other things, the Ten Commandments. As anyone could have predicted, progressive activists promptly sued, alleging the monument’s placement in the heart of the state’s judicial building constituted an “establishment of religion,” which is prohibited by the First Amendment. A federal district court agreed and ordered the monument removed.
Moore refused to comply with the order, which was upheld on appeal and then denied review by the Supreme Court. Moore’s state supreme court colleagues had the monument taken out.
In a 2003 Wall Street Journal op-ed, Moore maintained that his “decision to disregard the unlawful order of the federal judge was not civil disobedience, but the lawful response of the highest judicial officer of the state to his oath of office.” In subsequent remarks, he suggested that removing the Decalogue display was itself a violation of his oath—as if such a monument were required under state law.
The attorney general of Alabama, William Pryor, who was subsequently named to the U.S. Court of Appeals for the Eleventh Circuit by George W. Bush, agreed with Moore on the meaning of the First Amendment. Neither man believes the display of the Ten Commandments in a courthouse constitutes an impermissible establishment of religion. Yet Pryor recognized the binding nature of a federal court order and understood how Moore’s defiance undermined the rule of law. Pryor and the state’s legal ethics panel, the Alabama Judicial Inquiry Commission, removed Moore from the bench. In failing to comply with a federal court order, the commission concluded, Moore had violated the canons of judicial ethics. The Alabama supreme court upheld the ruling.
Testifying before Congress in 2004, Moore said he was “removed from the position to which I was elected by the people of Alabama because I chose to acknowledge God through a display of the Ten Commandments.” That’s simply not true. The ethical violation occurred when he refused to comply with a federal court order and flouted the rule of law.
Moore further proclaimed that as a state judge, he was not required to follow the dictates of federal judges: “If by ‘defying the rule of law’ my critics mean that I have defied federal judges, then they are equating ‘the law’ with the pronouncements of those judges. That is not our system.” By Moore’s lights, he was justified in defying a federal court order because he disagreed with it. “A judge’s ruling is an opinion on the law, not the law itself: The opinion carries the weight of the law behind it only so long as it remains faithful to the text of the law.” If a judge gets it wrong, according to Moore “his opinion is no long-er clothed in the authority of the law.” Yet that’s not how our system works—or has ever worked.
Any such ideas were put to rest some 200 years ago by the Supreme Court in Martin v. Hunter’s Lessee. It was one of the Marshall Court’s most important decisions, settling why federal court decisions bind state courts, even when state-level jurists believe their federal brethren got something wrong.
Martin arose from a property dispute. During the Revolutionary War, the Commonwealth of Virginia seized Loyalist property. A postwar treaty between the United States and Britain pledged to respect the property rights of Loyalists. When Denny Martin sued to regain possession of the seized land, the Virginia supreme court rejected his claim, concluding that the treaty did not entitle Martin to restoration of the property at issue. He appealed to the Supreme Court, which rejected the Virginia decision. On remand, however, the Virginia court stuck to its guns. The Supreme Court, it maintained, lacked jurisdiction over cases originating in state courts, and there was no reason to presume the Supreme Court’s interpretation of a federal treaty was superior to that of a state tribunal.
Justice Joseph Story’s majority opinion in Martin is a mini-tutorial in the nature of our federal system and the authority of the federal judiciary. In rejecting the Virginia supreme court’s arguments, Story explained how Article III of the Constitution expressly gives federal courts the power to decide questions of federal law, even in cases that originate in state court.
In ratifying the Constitution, the American people created a superior power in the federal government (albeit one limited to its enumerated powers). Among its powers was to ensure states do not contradict or obstruct federal law.
Story’s argument was not based upon any claim that federal judges are wiser or more likely to reach the correct result than state judges. Accepting “the most sincere respect for state tribunals,” he explained that the “necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the Constitution” was the reason why federal court decisions must be able to bind state officers, judges included. Indeed, this was the whole point of having a federal judiciary in the first place.
Our federal system readily accommodates differences in state laws. It is one of its virtues. Different parts of the country can adopt and enforce those laws that are most in line with local preferences. Federal law, however, is of a different nature. When laws are enacted by Congress, they are the “supreme law of the land”—and a law can hardly be “supreme” if it means something different in different places. Thus, a federal judiciary, with the authority to hear cases originating in state courts and overrule decisions on federal law issued by state judges, was essential. Indeed, to some, the lack of a federal judiciary was among the most important reasons to ratify the Constitution. As Alexander Hamilton wrote in Federalist 22, the lack of a federal judiciary “crown[ed] the defects” of the Articles of Confederation.
“The responsibility to administer the justice system of the State of Alabama is a power clearly not delegated to the federal government under the U.S. Constitution,” Moore argued in his defense. True enough, but the “supremacy clause” in Article VI provides that federal law is “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Moore’s defenders sometimes seek to explain his actions by citing Abraham Lincoln’s harsh criticism of the Supreme Court’s decision in Dred Scott v. Sanford. Lincoln believed the 1857 decision was wrong and, when president, argued he was under no obligation to follow the court’s holding in the performance of his official duties. In contrast to Moore, however, Lincoln never claimed the authority to reject a court order. To the contrary, he acknowledged “decisions must be binding in any case upon the parties to a suit as to the object of that suit.”
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Alabama voters restored Moore to the chief justiceship in 2012, but once again he would not finish his term. This time the issue was gay marriage. Like many, Moore feels Obergefell v. Hodges was wrongly decided, but he, further, believed that the Constitution does not require Alabama to recognize same-sex unions legalized by the decision. As in his fight over the Decalogue monument, Moore thought his opinions entitled him to disregard federal court orders. This time he went even further, publicly declaring his resistance to Obergefell and instructing state probate court judges to follow suit, even after federal courts issued orders against Alabama officials. Moore again denied the authority of federal courts, and again the Alabama judicial inquiry commission cut his term short.
In addition to failing to understand the purpose and operation of Article III and the federal judicial power, Moore seems willing to overlook or ignore those provisions with which he disagrees. In late 2006, he called upon members of Congress to exercise their power under Article I, Section 5, of the Constitution to refuse to seat the newly elected Keith Ellison in the House of Representatives because of his Muslim faith, conveniently overlooking that Article VI provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Moore seems to respect only those constitutional provisions compatible with his worldview.
In a recent interview in Time, Moore claimed, wrongly, that it’s illegal for NFL players not to stand during the national anthem and argued that his critics are the ones who are “confused” about the relationship between state and federal law. Asked how he might address “illegitimate” court opinions, Moore responded: “Justices who put themselves above the Constitution they’re sworn to uphold? They should be . . . removed.” As an Alabama supreme court justice Moore did, and he was—twice.
Jonathan H. Adler is the Johan Verheij memorial professor of law at the Case Western Reserve University School of Law. His most recent book is Business and the Roberts Court (2016).
