an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Atrios raises an interesting point when he suggests that it's important that Chief Justice Moore is a judge rather than a legislator. He says
one thing [Balkin] doesn't address (note he's the really smart lawyer and I am not) is that even if one thinks, as [Alan] Keyes does, that states do still have the right [to establish religion], that would seem to be the job of the state legislature and not a lone judge.
Well, yes and no. Atrios is making the familiar argument that judges shouldn't make policy or otherwise exercise legislative functions; quite apart from Moore's misinterpretation of the Constitution, what Moore is doing is institutionally improper because he's a judge and the decision to promote religion, if permitted, should be left to the Alabama Legislature.
But one thing that's been overlooked in the Chief Justice Moore Controversy is that when Moore put up his monument he was not acting in his capacity as a judge. He was acting in his capacity as chief administrator of the Alabama courts. Moore has decided no case that says that he has the right to put up the Ten Commandments in the state court house. He could not do so anyway, because as a party to the controversy he would have to recuse himself from deciding it. Rather, he is acting as an administrative functionary, like a member of an administrative agency. And administrative agencies do make policy. They make it all the time. (It's also true but irrelevant that Chief Justice Moore is an elected official; although judges are elected in Alabama, they are elected to be judges. The important point is that as Chief Justice, Moore has the additional responsibilities of maintaining the courthouse and administering the Alabama judicial system.)
That's important for two reasons. First it is precisely because Moore is acting in his capacity as administrator that his actions can be considered by a *lower federal court.* Decisions of state supreme courts are appealed to the Supreme Court, not the lower federal courts, and in most cases (except for federal habeas corpus proceedings), lower federal courts have no power to review decisions by state courts. So the only reason that Judge Thompson could order Moore to move the monument is because Moore is not acting as a judge but as an administrator.
Second, even though Moore is not acting as a judge, but as an administrator, he still has an independent obligation to interpret and obey the U.S. Constitution. That is true of legislatures, members of the executive branch, and judges. All of them are sworn to uphold the U.S. Constitution as required by Article VI. So whenever a legislature or an administrative agency makes a decision concerning religion, they must independently assess whether what they are doing violates the Establishment Clause. They should not simply leave it up to the courts to decide. Often legislatures don't do this (no matter what portion of the Constitution is involved), because they are pandering to their constituents. They think that it is ok to let the courts take the heat instead of voting against popular legislation or engaging in executive action that they know (or should know) is unconstitutional. When they do so, they are violating their obligations under the Constitution and their oaths of office.
Chief Justice Moore, in this case, *is* engaging in independent constitutional interpretation. His interpretation is wrong, but at least he is making a claim about what the Constitution really means. Having made his interpretation, and having had it rejected by the courts, he should bow to their decision. This is not a case where the Court says that Moore may do something and in his heart he knows that the best interpretation of the Constitution means that he should not. In that case he may disregard the Court's more lenient interpretation and refuse to violate the Constitution as he interprets it. Rather, this is a case in which a court has told Moore that a specific action he has taken violates the Constitution, regardless of his interpretation to the contrary. In that situation, after having had his day in court, he should follow a direct order by the courts.
UPDATE: The administrative nature of Chief Justice Moore's action is clear from the order issued by the other members of the Alabama Supreme Court, ordering that the Building Manager of the Alabama Judicial Building remove the monument. (Link via Howard Bashman via Findlaw)