- On Tuesday night, the Alabama Supreme Court had a humiliating and highly public meltdown. In a 148-page opinion, the justices held that Alabama’s gay marriage ban remained valid—purporting to overrule a federal judge who recently struck down the ban and ordered probate judges throughout the state to issue marriage licenses to gay couples. Only one justice dissented, while another concurred; the other seven joined a bizarre, prolix, occasionally unintelligible opinion that challenges fundamental notions of federal supremacy, constitutional order, and equal protection of the law. It is a gruesome, mangled masterpiece of rambling illogic and venomous vitriol. It is the judicial version of a nervous breakdown, and it deserves to be read in full.
Update: the New York Times has also chimed in on the topic. The author gets right to the point about nullification, a term we haven't heard since South Carolina seceded from the Union.
CJ Roy Moore on the possibility of defying a SCOTUS ruling: (From an AL radio program, quoted in the NYT) Also from that NYT article (although the whole thing's worth a read): Chief Justice Marshall observed, “If the legislatures of the several states may at will annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.” This holds just as true if state courts exercise an identical nullification power over federal court orders. The Alabama Supreme Court’s action represents an unfortunate departure from the cooperative norm that must prevail between these independent judicial systems. Other state judiciaries would do well not to follow its example.It would be a very hard decision, because I know there’s nothing in the U.S. Constitution that authorizes the Supreme Court of the United States or any federal court anywhere to misinterpret the word marriage.
If State Supreme Courts followed the Alabama Supreme Court’s lead, a system of dual courts simply would not work. The United States Supreme Court, which hears only 80 to 90 cases per year, would not be able to disentangle the legal morass that would result if state courts routinely thumbed their noses at the decisions of their local lower federal courts.
The seven Alabama Supreme Court justices writing in favor would have had a stronger case if they'd just said "cuz... umm... roll tide!"