Former Alabama Supreme Court Chief Justice Roy Moore. | ALABAMA SUPREME COURT
The Alabama Supreme Court normally consists of seven justices elected by the state’s voters, but when Roy Moore, who was suspended as chief justice by order of the state’s Court of the Judiciary on September 30, 2016, sought to exercise his right to appeal to the state’s Supreme Court, all of the other justices recused themselves.
What to do?
The Supreme Court invoked a special procedure to authorize the acting chief justice (appointed to occupy Moore’s seat for the duration of his elective term) to “participate” with then-Governor Robert J. Bentley — who has since resigned because of a sex scandal — to create a substitute “Supreme Court” to consider Moore’s appeal. The two assembled a list of all the retired judges in the state deemed “capable of service,” then conducted a lottery to compile a short list of 50 potential judges, with the first seven names drawn making up this special substitute court.
Moore was suspended because of his activities in opposition to marriage equality. After US District Judge Callie Granade ruled on January 23, 2015 that the Alabama Marriage Amendment and the Alabama Marriage Protection Act, both of which prohibited formation or recognition of same-sex marriages, were unconstitutional, Moore sprang into action. He undertook various efforts to block implementation of Granade’s order by denouncing it as illegitimate, then encouraging and later directing the state’s probate judges to refrain from issuing marriage licenses to same-sex couples.
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As chief justice, Moore both presided over the Supreme Court and acted as the administrative head of the state court system, in which capacity he could issue directives to lower court judges.
As the marriage equality issue continued on its course to its June 2015 victory before the US Supreme Court in the Obergefell v. Hodges case, Moore remained outspokenly opposed, making every effort both publicly and behind the scenes to stave off the day when the same-sex marriage evil might be fully accepted in Alabama.
Although he recused himself from some of the Alabama Supreme Court’s actions after having issued his initial public denunciations of Granade’s rulings, he ultimately decided to participate in its decision in 2016 to dismiss all pending proceedings and allow the probate judges to do their duty. Moore wrote separately from the rest of the court, however, first to justify his decision not to recuse himself despite his prior actions and public statements, and then to inveigh against the federal constitutional ruling, reiterating his view that Alabama was entitled as a sovereign state to reject federal interference with its marriage laws.
This led to allegations he was violating provisions of the ethical code for judges, and charges were filed against him before the Court of the Judiciary, which found a string of ethical violations and suspended him from office.
In his appeal, Moore challenged the jurisdiction of the Court of the Judiciary to make its decision and contended he had not violated any judicial ethical rules. He also asserted that his suspension, which would run for over two years until the end of his elective term, was not warranted and was unduly long, far longer than any past disciplinary suspension of a sitting judge.
The specially-constituted substitute Supreme Court disagreed with Moore on every point, announcing on April 19 its determination, unanimously, that “the charges were proven by clear and convincing evidence and there is no indication that the sanction imposed was plainly and palpably wrong, manifestly unjust, or without supporting evidence,” so the court “shall not disturb the sanction imposed.”
This might not be the end for Moore as a “public servant,” however. Earlier in his career, he was ejected from the Alabama Supreme Court for defying a federal court order to remove a 10 Commandments monument he had installed in the lobby of the high court’s building. He bided his time and eventually came back and won election to a new term as chief Justice. At 70, he is barred from running again for the state high court, but on April 26 he announced he would contest the US Senate seat vacated by Jeff Sessions when he became Donald Trump’s attorney general. Bentley, before resigning the governorship in disgrace, had appointed the state’s attorney general, Luther Strange, to fill the seat pending a special election scheduled for December 12.
Strange has already announced he will be a candidate for the Republican nomination, and the deadline for candidates to qualify for the August 15 primary is May 17. If no candidate wins an outright majority for the Republican nomination, a run-off will be held on September 26. Moore remains extremely popular with the Alabama electorate, who are apparently thrilled by his defiance of federal judicial authority and the gay menace. So stay tuned.
