Folks are comparing Roy Moore, chief justice of the Alabama Supreme Court, to Ross Barnett and George Wallace. I’d expect comparisons to Orval Faubus, too, although I haven’t seen those. (Yesterday, Moore entered an order prohibiting the issuance of same-sex marriage licenses in Alabama, in defiance of the federal district court ruling holding the prohibition unconstitutional. This morning the United States Supreme Court declined a stay of the district court ruling over dissent by Thomas and Scalia).
I’m curious, though, whether those folks went the extra mile that Chief Justice Moore has gone here. He’s entered an order even though there was neither case nor controversy before him– just entered an order out of the blue. He’s done it solo– no other justice signed on to the order.
There are funky details to what he did that are also worthy of comment. You have to wonder if he’s just having fun with us, or whether he and some friends wrote this thing Saturday night over bourbon down at their house on the lake.* He notes that the Alabama Supreme Court is not required to follow decisions of federal district courts in Alabama, that they are only persuasive authority, not controlling, and that a suit against the Attorney General of the state establishing an Alabama law is unconstitutional doesn’t say anything meaningful to either the Alabama Supreme Court or the folks issuing marriage licenses.
I guess he’s about to learn some things about federal judges, the power of injunctions, and the reach of the Supremacy Clause.
Below is Charles Mingus’s “Original Fables of Faubus.” Folks might be more familiar with the one without lyrics on Mingus Ah Um; Columbia would not allow the song to be released with the words. Not knowing that, for years I wonder why Mingus had titled such a great piece after Faubus.
*Note: I am joking about the bourbon and the house on the lake. It is completely invented.