You see, my fellow Alabama justices freed [Renaldo] Adams from death row not because of any error of our courts but because they chose to passively accommodate -- rather than actively resist -- the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.
The proper response to such blatant judicial tyranny would have been for the Alabama Supreme Court to decline to follow Roper in the Adams case. By keeping Adams on death row, our Supreme Court would have defended both the U.S. Constitution and Alabama law (thereby upholding their judicial oaths of office) and, at the same time, provided an occasion for the U.S. Supreme Court, with at least two new members, to reconsider the Roper decision.
State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the Court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are "precedents."
Justice Parker has to know better than this. Inferior court judges are not at liberty to simply ignore precedent because they see fit. And there is no warrant to suggest that the only reason they do follow said precedent is because if they choose not to, the Court will overturn their verdict. Precedents serve to provide stability and predictability in our judicial proceedings, both attributes conservatives should love. Judges who ignore superior court mandates are engaging in clear activism--ignoring the strictures of law in favor of their own personal whims and desires. There simply is no way around it.
Steve Vladeck comments further:
This strikes me as not only very wrong, but also very dangerous. As pertains to interpretations of the U.S. Constitution, the U.S. Supreme Court is the ultimate arbiter, and its decisions are binding on every court in the United States, no matter how "wrong" it may be. State supreme court judges who think they're not bound to follow the federal Supreme Court's reading of the federal Constitution might want to re-read Article VI thereof (not to mention Marbury and, at the very least, Cooper v. Aaron).
It's ironic that the already barely plausible justification Justice Parker gives for his activism, that the new judges on the Supreme Court may assist in overturning Roper, is virtually inconceivable. As is noted by Douglas Berman, none of the judges being replaced were part of the Roper majority, so even if all of the new appointees vote to overturn (and given all the pains Alito and Roberts have taken to assure us they "respect precedent", that may not be a sure bet), the result wouldn't change unless the newbies could persuade a member of the majority to defect.
But for me, the kicker is this quote from Parker's own court biography (first link at the top of the post):
Justice Tom Parker was elected to the Alabama Supreme Court in November 2004. Immediately prior to that, he was the Special Projects Manager for The Foundation for Moral Law, where he coordinated a federal legislative effort, under Article III, Section 2 of the U.S. Constitution, to combat judicial activism.[emphasis added]
My how the proud have fallen. Or perhaps "combat[ing] judicial activism" was always code for implementing conservative policies?
One final note I'd like to add. Many commentators are saying that a judge merely writing an op-ed attacking an opinion by one's colleagues is in itself reprehensible. I'm open to being persuaded on the matter, but I have to admit that aspect doesn't bother me. This editorial does not strike me as substantially different than something Parker would have written as an "angry dissent" if he hadn't recused himself from the case at hand. I do think that his recusal was appropriate in this case, to be sure. And I know that judges traditionally have not participated in the rough-and-tumble of mainstream journalism. But I fail to see why what would have likely been his same words in a dissenting opinion become inappropriate when written in an editorial.