"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, August 11, 2016

The #ChiefJudgeRoyMoore of the State of Alabama and his stance on the Supremacy Clause and civil disobedience to unlawful court orders

Judge Roy Moore of the State of Alabama is currently facing the possibility of being removed from office - for the 2nd time.

#ChiefJudgeRoyMoore is currently suspended with pay since May of 2016 and has just went through a preliminary disciplinary hearing where he asked to dismiss the disciplinary complaint against him.

Yet, the disciplinary authorities refused to do that and set a trial date for September of this year, on charges that Chief Judge Roy Moore "urged 68 probate justices to defy the federal courts on same-sex marriage".

The interesting wording in the charges is that Judge Moore did not defy his constitutional oath of office, or the "federal law" - but the federal "courts".

Judge Moore is well known for his assertion of "God's law" in the state courtrooms of the State of Alabama.

The first time Judge Moore was removed from the office of the Chief Judge of the State of Alabama in November of 2003 for defying a federal judge's order to remove the monument to 10 Commandments from the State Supreme Court's grounds.

At that time, in 2003, the disciplinary panel reportedly said that Judge Moore "put himself above the law by 'willfully and publicly' flouting the order to remove the 2.6-ton monument from the state judicial building's rotunda in August".

First of all, to put any religious monuments on state grounds is certainly unconstitutional, it is a violation of the Establishment Clause of the 1st Amendment to the U.S. Constitution.

By putting the monument to 10 Commandments on the grounds of the State Supreme Court of the State of Alabama, Chief Judge Roy Moore established and promoted only one religion on the taxpayer-funded property - his own, while taxpayers who Judge Moore served and serves are both non-religious and religious and the religious taxpayers belong to multiple confessions.  The Establishment Clause exists in the U.S. Constitution for a reason, and Judge Moore, in order to take his office, took an oath to be loyal to the U.S. Constitution, including the Establishment Clause.

The formulation of the removal though was problematic - it emphasized defying an order of the federal court, and not the violation of Judge Moore's constitutional oath of office, and there is a vast difference between the two since a federal court's order may well be unconstitutional (it wasn't in this case, but it certainly can be).

What landed Chief Judge Roy Moore in the disciplinary court now is his stance against same-sex marriage, where Chief Judge Roy Moore refused to obey to the U.S. Supreme Court decision handed in June of 2015 in Obergfell v Hodges where the U.S. Supreme Court recognized the right of same-sex couples to marry as a constitutional right.

Chief Judge Moore allegedly urged 68 probate judges in the State of Alabama to refuse to follow Oberfell v Hodges and to refuse to issue marriage licenses to same-sex couples because of Judge Moore's position that the U.S. Supreme Court's decision in Oberfell v Hodges is wrong and should not be followed.

Yet, I see that the press coverage simplifies Chief Judge Moore's position as an arrogant religious fanatic who defied the law.

As Chief Judge Moore explained in a very interesting interview clumsily handled by New York State Governor Andrew Cuomo's brother Chris Cuomo, it is not that simple.

And, Chief Judge Moore's arguments in support of his position were actually very sound legal arguments - while Chief Judge Moore wiped the floor with Chris Cuomo hands down and showed Chris Cuomo to be a conformist, a coward, a bully - and an attorney educated in a prestigious and expensive private law school who does not know the contents of the United States Constitution, 20 years after Chris Cuomo took an oath to uphold that Constitution.

In his interview of Chief Judge Moore, held before the U.S. Supreme Court decision in Obergfell v Hodges, in February of 2015, Chris Cuomo acts like a complete bully, sermonizes the judge, runs over him and does not allow him to put a word in edgewise.

Yet, when Chief Judge Moore does have an opportunity to get in a word, Judge Moore makes Chris Cuomo look very pale - intellectually.

The points of the debates on both sides, in short, are:


  1. since a federal judge made a decision that same sex marriages are constitutional, it is now the Law of the Land, and you, as Chief Judge of a state court, are bound by that law; the stare decisis controls;
  2. we are not governed by the Biblical law, we are governed by secular laws which changes with times, and now the secular law changed to allow same sex couples to marry;
  3. not to allow same sex couples to marry is discrimination

  1. there is no such thing as "federal law" in terms of judicial decisions,
  2. federal court orders are not part of the "Supreme Law of the Land",
  3. a judge is not bound by a wrong decision of a federal court, any state judge has a right to individually interpret the U.S. Constitution;
  4. Marriage is a holy union between one man and one woman,
  5. the people of the State of Alabama have ruled, through a Constitutional amendment to their State Constitution, as to what constitutes marriage in Alabama, and federal courts do not have authority, under the 10th Amendment of the U.S. Constitution, to interfere and change that definition;
  6. The U.S. Constitution means what it says in its text, and not what a federal judge invents that it says.

Judge Moore, of course, undermined his position that decisions of federal courts are not the Supreme Law of the Land by referencing two U.S. Supreme Court decisions - Murphy v. Ramsey, 114 U.S. 15 (1885) and Loving v Virginia, 388 U.S. 1 (1967) in support of Judge Moore's own position that marriage is a holy union between one man and one woman only.

These two cases were also not a very good choice to support the argument about the Supreme Law of the Land because later on Judge Moore put Chris Cuomo on the spot by a question whether Chris Cuomo would feel bound, had he been a judge, with a clearly wrong, unfair and unconstitutional decision of a federal court, such as Dred Scott (an 1858 U.S. Supreme Court case declaring legality of deeming African-American slaves as property) and Plessy v Ferguson (an 1896 U.S. Supreme Court case legitimizing racial segregation).

In Murphy, the U.S. Supreme Court legitimized disenfranchisement of the Mormons of the State of Utah who practiced polygamy on religious grounds, and in Loving v Virginia the U.S. Supreme Court specifically stated that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men" - not by "one man and one woman", as Judge Moore presented.

Yet, Judge Moore's great victory in that interview is that he has gotten through badgering by Chris Cuomo by continually insisting that Chris Cuomo should answer the question whether he would personally find Dredd Scott and Plessy v Ferguson binding upon himself had he been  judge at the time the decisions were made.

Chris Cuomo first resisted answering the question and then, very frustrated, did answer it - that "of course", he would HAVE to adhere to Dred Scot and Plessy Ferguson at the time the decisions were made, no matter how wrong they were, because they were "the Law of the Land".

Yet, as Judge Moore correctly pointed out, judicial decisions are not included into the Supremacy Clause of the U.S. Constitution (I wrote about it on this blog many times), and thus are not binding on anybody, if such decisions are clearly wrong.

So, while I do believe that same sex couples do have a right to marry, as a matter of equal protection of laws, I also do see that Judge Moore has a point indicating that, if a judge deems a certain decision of a federal court as wrong, the judge is not bound by it because decisions of federal courts, including decisions of the U.S. Supreme Court, are not part of the Supremacy Clause and are not the Law of the Land.

Thus, the disciplinary proceedings against Judge Moore is not simply because his stance is, once again, to jam his personal religious beliefs in secular state courts of the State of Alabama, and not simply because Judge Moore is promoting discrimination against same sex couples in his state - which is, of course, not a lawful behavior for a judge on both counts.

But, the jist of the disciplinary proceedings is that Judge Moore, by advancing the Christian religious dogma in State Courts, defied the newly emerged no-less-religious dogma created by the judiciary and the legal profession, that decisions of federal courts and of the U.S. Supreme Court are somehow the Law of the Land - which is contrary to the clear and unambiguous text of the Supremacy Clause of the U.S. Constitution.

Moreover, Judge Moore, a powerful intellectual well-versed in the law, is asserting the right of judges to engage in what constitutes nowadays acts of civil disobedience - and to disobey court decisions they consider to be wrong, on principled grounds.

That is a clear 1st Amendment issue.

Chief Judge Roy Moore did file a federal lawsuit, but did not seek a declaratory judgment that federal court decisions do not constitute the Supreme Law of the Land.

Instead, the only thing that was challenged in Judge Moore's federal lawsuit, was constitutionality of Section 159 of the Alabama State Constitution that automatically suspends a judge from office when either a federal criminal charge or a disciplinary complaints is filed against him by the judicial disciplinary authorities.

Here is Judge Moore's civil rights verified complaint in full.

Judge Moore's federal lawsuit was dismissed on August 4, 2016 on the so-called "Younger abstention" grounds, without prejudice, which means, after the state proceedings - and appeals from them - run through, Judge Moore can bring his federal lawsuit back.

Here is the order of dismissal.

So, we will see what happens this coming September at Judge Roy Moore's trial.

But, Judge Roy Moore did raise important points in public debate - whether judicial decisions are part of "Supreme Law of the Land" and whether wrong judicial decisions are binding upon state courts or can and should be disregarded.

I will follow the story of Judge Roy Moore's disciplinary proceedings with great interest and will report about it on this blog.

Stay tuned.


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