This past week there was a showdown in Alabama over the issuance of gay marriage licenses. U.S. District Court Judge Callie Granade had struck down Alabama’s bans on same-sex marriage in January and the Supreme Court refused to grant a stay of the decision on February 9. In response, Alabama Supreme Court Chief Justice Roy Moore called for the state’s probate judges to refuse granting marriage licenses to same-sex couples despite Judge Granade’s decision. This situation has once again brought Chief Justice Moore to the spotlight. In 2000, Justice Moore installed a huge monument to the 10 Commandments in the rotunda of the Alabama Supreme Court building. In a subsequent court case, the 11th Circuit Court of Appeals ruled that the monument violated the Establishment Clause of the First Amendment and ordered that it be removed from public view. However, Justice Moore publicly defied this order, which led to his removal as Chief Justice by the Alabama Court of the Judiciary.
Alabama is one of the states that selects the members of its Supreme Court in partisan elections. I find the popular election of judges—and the ability to remove them by popular vote—to be dangerously misguided. The point of judges is that they are supposed to act impartially, with an eye only to the law and justice. However, involving judges in elections—particularly on the highest level in states—clouds their judgment and motivations. Judges that must run for reelection will inevitably be influenced by partisan, political factors, because such considerations are necessary to attract enough votes to keep the job. Judges must be free from the meddling of the public in order to effectively judge; otherwise, they are just pawns of the majority. Ideally, judges were originally instituted to be the front line of defense against the tyranny of the majority. Once judges are on the bench, they should not be afraid of ruling as they interpret the law shows. Only when judges can rule with impunity can they truly judge.
The United States has a rich tradition of judicial independence. Brown v. Board of Education, desegregating public school students, and Worcester v. Georgia, defying President Andrew Jackson in preventing Georgia from imposing laws on the Cherokee nation, are particular instances of landmark Supreme Court decisions defying contradicting other authorities. Perhaps the greatest example of this tradition is the trial of Samuel Chase. Chase had been appointed to the Supreme Court of the United States by President George Washington and was known for his strong Federalist views. However, when President Thomas Jefferson was reelected in a landslide in 1804, he attempted to have Chase impeached for alleged judicial misdeeds, but it was evident that Chase was being attacked for his views. In the ensuing trial in the Senate, Chase was acquitted despite an overwhelming Democratic Republican majority. This case—the only time a United States Supreme Court Justice has been impeached—sets the precedent for the independence of the judiciary. Judges should not be removed for their beliefs, only for legal or ethical issues. This is a lesson that many states could learn as well. Judges can only be fair if they have no fear of reprisal, which is why Federal Judgeships are lifetime posts. If this were the case in the states, it would be less likely that a firebrand like Justice Moore would be defying, yet again, the orders of a Federal judge, and denying same-sex couples in Alabama their newfound right to marriage.