It appears that the Senate race in Alabama between Republican Roy Moore and Democrat Doug Jones is now a dead heat. The tie in the normally reliable red state reflects controversial views of Moore who was twice removed from his job as chief justice of the Alabama Supreme Court for defying federal court orders. One of his most alarming recent statements concerns the Supreme Court. Moore told followers that he would support the impeachment of any justice voting in favor of same-sex marriage, a position that would destroy the integrity and traditions of our legal system.
Moor was introduced at the speech by Abraham Hamilton who heralded Moore for putting his faith above the Constitution and call him “the tip of the spear in what we need to usher America back into its place in submission to our holy God.”
Moore then took the microphone and declared that Congress should have impeached the Supreme Court justices who affirmed the right of same-sex couples to get married:
“Somebody should be talking to the Supreme Court of the United States and say, ‘What gives them a right to declare that two men can get married?. . . Tell the Congress: Impeach these justices that put themselves above the Constitution. They’re judicial supremists and they should be taken off the bench.”
So Moore believes that he should not have been removed from the bench for putting his personal religious beliefs above the Constitution, but justices should be removed if they interpretation the Constitution in a way that contradicts his religious beliefs. This, he insisted, would “solve the problem.”
The “problem” appears to be justices following their good-faith interpretations of the Constitution. While hardly a first for Moore, such a view would violate not just fundamental principles of judicial review but it would violate the impeachment clause. As the last lead counsel in a judicial impeachment case (in defense of Judge Thomas Porteous), Moore’s view is deeply troubling. As I have previously written, the Good Behavior Clause of Article III was designed to protect the independence of the judiciary and insulate it from political pressures. It was meant as a guarantee of life tenure against precisely the type of threat that Moore is endorsing. As Alexander Hamilton explained in The Federalist No. 78:
In a monarchy [the good behavior standard] is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body….[I]t is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.
In the records of the Constitutional Convention, it is clear that the Good Behavior Clause protects the institution of the judiciary. Likewise, James Wilson described the Good Behavior Clause as intended to protect judges from “every gust of faction which might prevail in the two branches of our [government].”
In impeachment terms, differing judicial interpretations cannot be deemed a case of “treason, bribery, and other high crimes and misdemeanors.” If that were the case, each party could move to “clear the bench” of jurists who hold opposing interpretative views. It would lead to the destruction of the American judicial bench and values.
What is so disturbing is not that Moore would take such an extreme position (given his prior defiance of fundamental principles of judicial review). Rather it is the rapturous applause from the crowd as he called for the evisceration of judicial independence in the United States. There was little thought to the implications of his statement or the obvious threat to religious view if the majority can simply remove those who oppose their values from the bench. Tomorrow another religion or non-religious view could hold the majority and strip the courts in their favor. Our federal courts would then become little more than vehicles for majoritarian tyranny as they are in countries like Iran and Saudi Arabia and China. For example, Article 2 of the Iranian Constitution states that law “is a system based on belief in … the One God … His exclusive sovereignty and the right to legislate.” Thus, courts must follow Sharia principles and are subject to removal for defying “the One God.”
Moore would have Congress punish jurists who fail to follow its dictates on the law. It is the very danger that Madison warned against in Federalist 47:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.