If everyone in Alabama willing to presume the innocence of accused child molester Roy Moore followed the same presumption in criminal cases, the state would not have the reputation it has as one of the most unjust in the nation. Over two decades I have covered enough cases in Alabama, (see here, here, here and here, for example) that I am certain there are people – most likely black men who could not afford counsel – serving hard time whose convictions were based on less evidence of sexual misconduct than what has been alleged against Moore in the last two weeks.
There is no defending Moore as a potential federal official, even if you somehow believe him and not the growing number of accusers who say he is a serial sexual predator. For at least 15 years he has shown that he is a traitor to the Constitution, refusing on two occasions to perform the most basic function of a state court judge: obey the commands of the Supreme Court. And it’s not like Roy Moore is a member of a group of judicial dissidents such as those who disobeyed the Warren Court in the 1950s and 1960s. Moore first blew off the conservative Rehnquist Court over the Ten Commandments. Then he blew off the even-more-conservative Roberts Court over same-sex marriage.
What do you call a judge who refuses to obey the law? In Alabama, evidently, you call him iconoclastic and combative, part of the state’s tradition of “defiance,” which of course famously includes killing to defend slavery and then refusing to comply with federal court orders requiring school desegregation and the like. In the rest of America, the part of the country where jurists enforce even those laws and legal decisions with which they disagree, we call a judge like that worthless or, worse, dangerous.
Actually, that is unfair to Alabama. In its defense, the state removed Moore as elected chief justice not once, but twice, in 2003 and in 2016. He was ousted, repeatedly, not because he is a bigot, but because he ignored federal decrees with which he disagreed. At best, giving him the benefit of many reasonable doubts, Moore is a scoundrel unworthy of public office. At worst, he is a criminal who is lucky that his stature and connections within the state scared all these women from reporting his alleged misconduct sooner than they did.
All this can be true and yet none of it means that Moore was wrong, or diabolical, when, as a state supreme court justice, he dissented in criminal cases by siding with defendants who called out Alabama’s justice system for the disaster it is. If more appellate judges in the state viewed more cases the way Moore did, there would be fewer men and women imprisoned in Alabama for crimes they did not commit and fewer inmates serving grossly disproportionate sentences.
Which is why Slate’s Mark Joseph Stern was right (and more than a little brave) last week when he attacked progressives and others for criticizing Moore for his lone dissent in a 2015 child rape case, Higdon v. Alabama. “This criticism is misleading, unjust, and dangerous,” Stern wrote:
The implication that Moore favored the defendant because of the judge’s own alleged history of molestation is especially absurd. Moore’s dissent was perfectly plausible, and his broader argument would still permit Alabama to imprison the rapist for years. Liberals have long criticized those who attack judges for ruling in favor of criminal defendants when the law compels them to do so. They should not adopt the strategy they have long decried because Moore himself is a monster.
A few days after Stern’s piece, The New York Times upped the ante in a piece that surely won’t dispel the notion that Moore deserves scorn now for being surprisingly soft on crime (especially for a conservative jurist). It wasn’t just Moore’s dissent in Higdon that now is worthy of a second-look, the Times said. That dissent was part of a pattern in which Moore sided quite often with defendants on procedural grounds in cases involving “sexual crimes or misconduct.”
Justice Moore’s “empathy” for defendants—their word, not mine—did not just manifest itself in sex-crime cases, the Times continued. A review of his past appellate decisions revealed that Moore “has expressed concern over the years about mandatory life sentences for nonviolent crimes, and once suggested that a death row inmate might not be getting a fair shake in the court system.” Ask any Alabama capital defense lawyer and they will quickly tell you that it would be harder to find a death row inmate who did “get a fair shake” than one who did not. Moore deserves credit for acknowledging this fact even if it was only in one case.
Do I think Roy Moore went easy on defendants because he felt guilty about his own past conduct? Do I think he harbored some secret affinity for criminal defendants, especially those in sex crime cases? I have no idea. None of us do. What I do know is that it would be a shame if the few instances of reasonableness in Roy Moore’s long judicial career—beacons of light amid a sea of darkness – now were turned against him. It also would be a shame if one of the consequences of Moore’s current scandal is a chilling effect on other Alabama appellate judges, especially conservative ones, who are inclined to dissent as a way of protesting the state’s failed justice system.
There is plenty else in Moore’s record to pillory him. Plenty that disqualifies him for the Senate or any other public office. Plenty that makes him one of the most contemptible figures in modern political history. Plenty that dooms him to our history books as a symbol of unhinged bigotry and hatred. Leave those few dissents alone.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.