On Thursday, October 27, I happened to be in Montgomery to speak to the Montgomery Chapter of the Federalist Society. My timing was fortuitous. First, some background. In September 2016, the Alabama Court of the Judiciary issued an order suspending Chief Justice Moore for the remainder of his term, roughly 2.5 years. Chief Justice Moore appealed that order to the Alabama Supreme Court. However, the Justices of that Court voted to recuse. Under Alabama law, when the Supreme Court lacks a quorum, a procedure is put in place to select lower-court judges to form a special Supreme Court. This procedure was used back in 2003 the first time Moore was removed from the bench.
The procedure is almost too surreal to believe–but I was there in person, it actually happens in this fashion. The clerk of court placed in a gold candy box fifty slips of papers, with the names of retired judges written on them. (The same box was used in 2003). The clerk then places the box on top of her head–so there can be no accusation that she is peaking–and pulls out a slip of paper, and hands it to a deputy clerk. The deputy clerk then reads the name out loud, and hands the paper to another clerk who writes the name down on the list. This ritual is repeated 50 times, as 50 names were called. The first seven will presumptively be on the court, unless one recuses, or (I suspect) is challenged for impartiality. If a judge is struck, the eighth person on the list moves up. The procedure took about 15 minutes.
The only thing stranger than the procedure, was what happened beforehand. The Acting Chief Justice presided over the procedure, though she was not on the bench, and not wearing a robe. Moments before the drawing began, Chief Justice Moore’s attorney objected on the grounds that the judges who selected this procedure should have recused. I didn’t fully understand the objection, but he was seeking a continuance to further develop the argument. The acting Chief Justice, who was standing off to the side of the room, said the motion would not be ruled on because there “was no Court.” Moore’s attorney said there was a Court–the Justices were down the hall–and they could be called on. The acting Chief Justice repeated that the motion would not be ruled on, and told the lawyer to be seated. At that point, the lawyer and Moore exited the chamber, and announced that they will hold a press conference on the court house steps. After that, the name-drawing procedure commenced.
It was surreal. This video from Alabama.com does not even do the scene Justice–pun intended. If you look carefully in the first few seconds, you can see me sitting in the front row behind Moore. I’m wearing a red tie. Also, at around 0:37, you can see me as Moore and his attorney leave the chamber. My 15 seconds of fame, quite literally.
On a separate note, I saw the location of the former Ten Commandments memorial, which resulted in Moore’s 2003 removal. You can still some scratches on the marble floor from when the monument was removed.
I do plan on writing about Moore’s case. Along the lines of my co-authored article with Howard Wasserman, the Court of the Judiciary made some foundational errors about the scopes of injunctions, Cooper v. Aaron, and the erroneous view of federal courts as supreme over state courts. Stay tuned.
Update: I discussed the case before the Mobile Federalist Society Chapter. Here is the video: