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Judge Moore: Defender of Stare Decisis

The Yin Blog. The Legal Theory Blog. The Volokh Conspiracy. Today, Marci Hamilton. All of them, over the last few weeks have decided to blast Judge Moore for failing to remove his absurd monument to the 10 Commandments. With such a parade of heavy hitters against him, it makes it irresistable to try to defend the man, especially since he's doing such a poor job of defending himself.

While I actually think that an antipathy towards Christianity is behind at least some, if not all, of the general outcry against Judge Moore (though certainly not in the sources above), his key problem is the order of U.S. District Judge Myron Thompson to remove a 5,300 pound eyesore that seems to offend some very sensitive anti-religious sensibilities. Unless he can get past that, he's a goner.

Now Moore's key problem is he's a bombast, and more interested in being right than winning. So far he's made a number of fairly inconsistent and illogical arguments, mostly centering over state's rights issues. But imagine he were a Cardozo, a Learned Hand, or one of these other fellows accustommed to generating 'revolutions' in the law. In other words imagine he wanted to be clever and win, rather than garnering publicity. He might say this:

"Fellow Alabamians, fellow Americans: there has been a lot of talk lately about my failing to obey the order of a federal court to remove a monument to the Ten Commandments. It is with great regret that I have to announce that I cannot announce the order, as a matter of well settled law.

One of the backbones of our legal system is stare decisis, that a lower court must follow the precedent and example set by higher courts. In matters of the constitution, there is no court higher than the U.S. Supreme Court, and they have overturned the order of Judge Thompson.

The Ten Commandments are displayed prominently in the Supreme Court building itself, and of the great lawgivers immortalized in statue therein, the one of the oldest is Moses. I can't tell from the picture, but he seems to be holding the transcription for which he's best known.

Now, it's true that the Supreme Court denied certiorari in this case, however I choose to believe this is because they have established, by their very building, a precedent in fact. Their actions have spoken eloquently enough that no ruling was necessary. It would be violating my duty as a judge in upholding stare decisis for me to remove the monument, for by doing so I would be questioning the constitutionality of the United States Supreme Court, and I am not willing to take that step."

Why should he do it? Well:

  1. It certainly increases his chances of the Supreme Court paying attention, if only in order to take their words out of his mouth.
  2. It would show how silly this entire thing is. No one's trying to remove the Commandments from the Supremes.
  3. From my point of view, it's about time that Christian conservatives start working the 'legal realism' beat. If Justice Kennedy can find sodomy in the Fourteenth Ammendment, certainly Judge Moore can interpret the actions of the Supreme Court to speak as loudly as their words. And if we're ever going to get rid of legal realism, it needs to be less of a one-party process. Right now, it's a trend from which a (mostly secular) left has nothing to fear, because it will rarely be used against them. Here's a chance to stop that.
  4. It's narrow. Yes, in most cases I'd disapprove of a strategy like this, simply because it's making up the law as you're going along, 'pretending' that there's a tradition of stare decisis in action that doesn't exist. Then again, in how many cases can the structure of the Supreme Court building itself be used as an argument?
  5. It's clever, at least superficially, and would satisfy those who demand a little nodding wink with their judicial creationism and can't stomach claims of 'states rights.'

Just a thought before breakfast.


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Interesting thoughts. A few points: 1) I don't think the Supreme Court has denied cert. yet; I thought the only action the Court took was to deny Justice Moore's request for an emergency stay. Thus, he actually hasn't exhausted his appeals. 2) I'm not an Establishment Clause scholar (and thus my criticism has focused on the Supremacy Clause issue), but I'm not sure that one Ten Commandments plaque in one location can justify a completely different monument; it may largely fact driven. 3) There's no limiting principle here -- anyone could argue that a cert. denial combined with one's (different) reading of Supreme Court precedent justifies disobeyance of a court order directed specifically at that person.
a) I'll admit that having only read the CNN articles on the topic, I couldn't tell if cert had been denied or not. However, if it hadn't his case is stronger under an 'appeal to precedent in fact.' b) I'm not sure the argument works either, although I'd say it's convincing on its face. If the Supreme Court can display the Ten Commandments without the government moving to establish a state religion, I hesitate to see how an Alabama Supreme Court judge could do it. c) As for a limiting principle, you're right on that. Thinking about it, the inherent danger in the strategy I've proposed is that you'd annoy the Supreme Court to such an extent that they'd grant cert and rule against you just to make sure no one tried something that stupid again. I suppose the only way you could get around that is by arguing that a precedent 'in fact' was somehow more binding than one in a written opinion, which is pretty dangerous waters, especially for a law student to get into. :)
Except that in cases like that of the Supreme Court's building, it has already been decided that the display of Moses and the tablets are not a display that strikes people as very religious. It can be considered historical. CNN actually presented a variety of pictures from around the country of Moses or the Decalogue displayed around the country with corresponding legal explanations of why each was decided to be permissible or not.
Hmm... do you have a link to any of that? I'd be very interested in reading it. In any event, I'd say the Judge would have a fairly good argument that he could consider his monument 'historical,' if he hadn't already shot that argument down by his bombastic insistence on its religious nature. Damn... now I'm quite interested in looking into the case history of things like this, but I've definitely not got the time. Any links, as always, appreciated. :)
Sorry, I can't locate it by searching CNN, and searching the web brings up a whole lots of nasty stuff I'd rather remain ignorant of. :) Sorry you missed it. It was a series of pictures of various public buildings, with the tablets somewhere, and explanations of why or why not the displays were determined by courts to be violations of establishment. General themes: If Hammurabi is also in the picture, it's ok; if the tablets can't be read (i.e. they're representational), it's ok; if other religions are represented, it's ok; (possibly my favorite) if no one is inspired to pray in front of it, it's probably ok.

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