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Jewish World Review March 29, 2006 / 29 Adar, 5766

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Judicial activism or restraint | Are federal, state and local justices appointed to office to impose their personal views on society or to interpret law? Is it a judge's duty to uphold the U.S. Constitution, and state constitutions in the cases of state and local judges, or is it their duty to uphold foreign law and United Nations treaties? Should what a judge sees as "evolving standards of decency that mark the progress of a maturing society" and the UN Convention on the Rights of the Child and the International Covenant on Civil and Political Rights govern court decisions, or the U.S. Constitution?

It was the former, not the U.S. Constitution, that determined last year's Roper v. Simmons decision, in which the U.S. Supreme Court overturned the execution of a convicted murderer because he was 17 years old at the time of his offense. Judges have used their power to impose their own values on our society. They've ordered federal and state agencies to spend billions of dollars to carry out their favorite policies. They've ordered legislatures to raise taxes. In pursuit of their vision of justice, they've forced universities, businesses and government agencies to engage in race and sex discrimination.

Alabama Supreme Court Justice Tom Parker has little patience with his colleagues who use their office to impose their values instead of applying the written law, but he's in trouble for saying so. Judge Parker wrote an opinion article that was published in The Birmingham News on Jan. 1. It criticized the U.S. Supreme Court's 5-4 decision that banned executions for murderers who were under 18 when they committed their crimes. He also criticized his Alabama Supreme Court colleagues who followed the high court's ruling when they set aside the execution of a young Alabama death row inmate, Renaldo Adams, who was 17 at the time when he brutally raped and repeatedly stabbed a pregnant woman, then left her to die in the presence of three children.

Judge Parker wrote, "[M]y fellow Alabama justices freed Adams from death row not because of any error of our courts but because they chose to passively accommodate — rather than actively resist — the unconstitutional opinion of five liberal justices on the U.S. Supreme Court." Judge Parker added, "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) and, at the same time, provided an occasion for the U.S. Supreme Court, with at least two new members, to reconsider the Roper decision."

Joel Sogol, former chairman of the American Civil Liberties Union's (ACLU) litigation committee, filed a complaint against Judge Parker with Alabama's Judicial Inquiry Commission. The complaint charges Parker with violating Alabama's judicial ethics standards when he publicly criticized his eight Supreme Court colleagues and the Roper v. Simmons U.S. Supreme Court decision. Sogol says that Judge Parker's criticism breeds contempt for the law.

Sogol has it wrong. It's the court's failure to meet its constitutional duties that breeds contempt for the law. The Judicial Inquiry Commission can send the complaint to Alabama's Court of the Judiciary for trial. If the court finds the complaint is justified, it can reprimand Judge Parker or remove him from office. The ACLU would love the chilling effect of reprimand or removal.

Too many of us accept the notion that judges have a monopoly on the Constitution's interpretation. In an 1820 letter to William C. Jarvis, Thomas Jefferson warned: "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." Judge Tom Parker, and other justices who exhibit true faith and allegiance to their oaths of office, are a rare and disappearing breed. It's men like Judge Parker we should support in our struggle against constitutional contempt by government officials.

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