Roy Moore should run for governor of Alabama or for a seat in the state legislature. If he has higher political aspirations he should run for a seat in the U.S. Senate or the House of Representatives. As a conservative Republican with statewide name recognition and an agenda tailored for that state’s majority he would be a powerful candidate indeed. His future is in politics. His present and past are in the law. Because what Roy Moore can no longer do with any measure of authority is sit in judgment of Alabama litigants and pretend that he is a neutral arbiter of constitutional principles.
Roy Moore, the chief justice of the Alabama Supreme Court, was suspended again from the bench last Friday, this time amid an inquiry into his willful resistance to the U.S. Supreme Court’s marriage equality rulings. Instead of respectfully adhering to the higher court’s constitutional command to recognize same-sex marriage licenses he instructed probate judges in the state to reject applications for those lawful licenses. Instead of following the law even though he disagreed with that law he chose to put his own personal agenda ahead of the law.
When state judicial officials went public with their case against him last week Moore lashed out. "The Judicial Inquiry Commission has chosen to listen to people like Ambrosia Starling, a professed transvestite and other gay, lesbian and bisexual individuals, as well as organizations that support their agenda," Moore said. But this dispute isn’t about any group’s agenda or about the LGBT community. It is much simpler than that: state judges have to follow the law as it is interpreted by the U.S. Supreme Court. If they do not there is no rule of law. There is instead the demagoguery of judges like Moore.
It is telling that Moore is a repeat offender. It is the second time that Moore has refused to comply with a valid federal court order—and the second time he’s been pressed to leave the bench. The last time, in 2003, he refused to remove a Ten Commandments monument erected in a state courthouse. He was removed from office then for that transgression—that time, at least, he wasn’t ordering lower-level judges to violate the law with him-- but then was voted back into office in 2012. “I have no doubt this is a vindication,” Moore said at the time, sounding as he often does more like a politician than a judge.
It is clear that Moore wants to be a national symbol of opposition to marriage equality; wants to keep fighting a fight that many conservatives like him long ago conceded. He has every right to do that. But he has no right to do that while at the same time wearing a black robe and meting out Alabama justice while swearing an oath of office that requires him to obey the Constitution. Imagine being a gay or lesbian or transgender litigant with a case before Moore. Would you think he came to the case and the cause with an open mind?
Moore may be a symbol of the last remnants of the fight against marriage equality. But he’s also a symbol of all that can go wrong with judicial elections. He no longer even pretends to be a jurist who hears cases without fear or favor. Instead, he’s cultivated a populist image that keeps him in office. He’s the chief justice of a state because the people of Alabama wanted him there, wanted him to protect and respect and impose their views on the litigants who come before his court.
That cynical arrangement does not guarantee equal protection under law. It does not guarantee due process of law. It does not guarantee that the Bill of Rights will be interpreted to protect the rights of political minorities. At their worst, judicial elections ensure that there is no independent judiciary but rather a judiciary beholden to the whims and caprices of the majority. And that’s what Alabama has now with Roy Moore, a politician serving as a conservative advocate from his spot on the state’s most powerful judge.
Moore should resign from the bench today and announce his political candidacy for office tomorrow. He should stop hiding behind a robe to score the political and cultural and ideological points he wants to score. He should stop dragging his fellow state judges and justices down into the muck with him. The state’s beleaguered judiciary, not to mention the litigants who come to court there seeking equal justice, will be better off with him off the bench and on the stump. Say it loud and say it proud: Moore ‘2016!
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.