First, the bad news: the worst choices made by a president when faced with two finalists. Ed Whelan goes with Bush I's selection of David Souter over Edith Jones, followed closely by Ford's choice of John Paul Stevens over J. Clifford Wallace.
Now, the good news: Tom Parker, a justice of the Supreme Court of Alabama, chastises his colleagues for following the U.S. Supreme Court's precedent in Roper v. Simmons, which declared that Christoper Simmons couldn't be executed for a murder he committed when he was not yet 18 years old. Here's Justice Parker:
[M]y 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.
Those liberal justices declared last spring in the case of Roper v. Simmons that "evolving standards of decency" now make it "unconstitutional" to execute murderers who were minors at the time of their crime. The justices based their ruling not on the original intent or actual language of the United States Constitution but on foreign law, including United Nations treaties.
Ironically, one of the UN treaties invoked by the U.S. Supreme Court as a basis for its Roper decision is a treaty the United States has refused to sign. By insisting that American states submit to this unratified treaty, the liberals on the U.S. Supreme Court not only unconstitutionally invalidated laws in 20 states but, to do so, also usurped the treaty-making authority of both the President and the U.S. Senate. . . .
. . . I am surprised, and dismayed, that my colleagues on the Alabama Supreme Court not only gave in to this unconstitutional activism without a word of protest but also became accomplices to it by citing Roper as the basis for their decision to free Adams from death row.
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. . . .
After all, Roper itself was established as new U.S. Supreme Court "precedent" only because the Missouri Supreme Court refused to follow prior precedent. The U.S. Supreme Court used the appeal resulting from the Missouri decision to overturn its previous precedent and declined to rebuke the state court for disregarding the prior precedent.
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."
After all, a judge takes an oath to support the constitution -- not to automatically follow activist justices who believe their own devolving standards of decency trump the text of the constitution. . . .
Nullification of judicial activism by principled adherence to the U.S. Constitution. I like it. Very much. It gives "judicial supremacy" a brand new, delicious meaning.
When Must the Executive Enforce the Law?
More on the Debate about Judicial Supremacy
Another Look at Judicial Supremacy
Freedom of Contract and the Rise of Judicial Tyranny
Is Nullification the Answer to Judicial Supremacy?
The Alternative to Nullification
No Way Out?
The Wrong Case for Judicial Review
Raich and the Rule of Law
The Last Straw?
An Agenda for the Supreme Court
What Is the Living Constitution?
The Supreme Court: Our Last, Best Hope for a Semblance of Liberty
Tom DeLay and James Madison
The Case of the (Happily) Missing Supreme Court Nominee(s)
Kelo, Federalism, and Libertarianism
States' Rights and Skunks
A Useful Precedent
Speaking of States' Rights and Judge McConnell
An Answer to Judicial Supremacy?
Oh, *That* Privacy Right
Don't Just Take My Word for It
The Original Meaning of the Ninth Amendment
Substantive Due Process, Liberty of Contract, and States' "Police Power"
Amend the Constitution or Amend the Supreme Court?