In 2003, a panel of Alabama Chief Justice Roy Moore’s fellow judges unanimously removed him from office due to his repeated refusal to comply with a federal court order requiring him to remove a giant Ten Commandments monument that he installed in the state’s judicial building. At the time, Moore’s removal by his own peers in a very conservative state’s judiciary was viewed as the end of his judicial career. As it turns out, that’s not likely to be true:
Roy Moore said about 2 a.m. Wednesday that even though he had not been declared the winner of the Republican primary for chief justice of the Alabama Supreme Court that he expected to win without a runoff. … Moore was well ahead of former Alabama Attorney General Charlie Graddick and current Chief Justice Chuck Malone. He needed more than 50 percent of the vote to avoid a runoff.
With more than 98 percent of precincts reporting at about 2:15 a.m., Moore was hovering about 4,600 votes ahead of the 50 percent level he needed.
It’s important to understand why Moore’s decision to install his monument in a state courthouse was such a flagrant violation of the Constitution. Courts exist for the sole purpose of delivering equal justice under law. Yet, when the government endorses a particular religious view, it, in Justice Sandra Day O’Connor’s words, “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” It’s difficult to imagine any message that is less appropriate for a judge to send than the message that some Americans are more favored than others.
More importantly, however one feels about the Constitution’s wall of separation between church and state, a judge’s first loyalty must always be to the law itself. Moore disagreed with the court order requiring him to remove his monument, and that is his right, but his decision to openly defy a court order was not just wrong, it was standing-in-the-schoolhouse-door wrong. Moore’s actions were lawless, plain and simple, and when a judge is defies the law in such a blatant and fragrant way, he sends a clear message that the law itself is irrelevant within the confines of his judicial chambers. America can ill-afford judges who place their own whims ahead of the law itself.
This is why Moore’s resurrection is such a sad commentary on the state of our nation’s respect for the rule of law. When Moore lost his job nearly a decade ago, it reflected a national consensus that there were some things that judges simply could not do. Moore can speak out for his position. He can advocate to change the law, but no judge is permitted to openly flout the law. The consensus in 2003 demonstrated that liberals and conservatives stood together in reaffirming this basic understanding of how a nation of laws must function.
Today, however, this consensus has broken down. The case against the Affordable Care Act has, in conservative Judge Laurence Silberman’s words, no basis “in either the text of the Constitution or Supreme Court precedent.” And yet Republicans almost unanimously demand that the Supreme Court cast aside our founding document and nearly 200 years of precedent in order to invalidate this law that they disapprove of. When Republicans disagreed with the Obama’s Administration’s contraceptive access rules, they were not willing to simply make their case to the voters. Instead, they dreamed up an utterly meritless constitutional challenge to the rules that was rejected by conservative Justice Antonin Scalia more than two decades ago. Tea Party lawmakers who disagree with Social Security, Medicare, the minimum wage or the national ban on whites-only lunch counters tout long-discredited arguments that these laws are unconstitutional.
In other words, contrary to the perception that Moore was a universally discredited rogue in 2003, it is now clear that he was a harbinger. Moore’s brand of lawlessness — his belief that judges can enforce the constitution they wish we had instead of the Constitution we actually have — now dominates the Republican Party. Roy Moore is not an Alabama problem; he is an American problem.