Moore Petition to Supreme Court - Pages 27 to End


federal court injunction requiring him to perform his official duties contrary to his oath, the Court of Appeals below transformed the Chief Justice's oath from an oath to support the constitution as the rule governing his official actions to an oath to support the federal judiciary as the rule governing such actions. Such a claim of judicial supremacy over the Chief Justice's oath does not serve "the rule of law," as the Court of Appeals claimed, but the rule ofjudges. As such, it is a species of judicial idolatry," suitable, perhaps, for the British monarchy, but not for the American constitutional republic.

In the British Commonwealth, officers of the government swear an oath of allegiance to the king or queen, pledging "faithful and ... true allegiance to [ or her] Majesty ...." Promissory Oaths Act 1868, Ch. 72, § 2 (Eng.). The oath of allegiance to the British monarchy is in the nature of an oath of fealty to another human being who stands in the position of lord, whereas the oath of allegiance to the Constitution is an oath of faithfulness to the law that governs a person who has civil power. As Chief Justice John Marshall put it in Marbury, a federal judge's oath to decide cases "agreeably to the Constitution," presupposes that the Constitution—as it is written, not as it is interpreted by judges—is the rule of government even for the Supreme Court. 5 U.S. at 180. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 621 (1856) (Curtis, J., dissenting).

B. The Chief Justice's Oath Serves As A Check And Balance On Federal Judicial Power.

As pointed out by James Madison in Federalist No. 51, a system of separation of powers, accompanied by external checks and balances, is the first essential to establish and maintain the rule of law. Indeed, as Madison observed, the

See Bowman, Congress and the Supreme Court, 25 Pol. Sci. Q. 20, 34 (1910).



very nature of man requires that those who exercise civil power at the national level must not only be independent from one another, but subject to “encroachments” by the other co-equal branches in order to “control the abuses of government.” Id. Additionally, Madison asserted that a second essential of division of power between “two distinct governments,” one central and another local, would provide “double security ... to the rights of the people,” through a system of state checks and balances upon the central government. Id. By creating this “compound republic” for America ’s civil government, Madison concluded that no one branch of government would come into monopoly power, and thereby, the American people would be protected from despotism.

Those who claim that the federal judiciary need only be governed by their own sense of “self-restraint” only stand four-square against Madison’s description of the nature of the American constitutional republic, but suffer from “blind hubris” that an unchecked federal judiciary is no threat to the rule of law because it is insulated from politics by the constitutional system of lifetime appointments. See The End of Democracy? The Judicial Usurpation of Politics, First Things 18-20 (Nov. 1996). Those who designed the system of appointed federal judges, holding their offices during “good behavior,” did not contemplate a judiciary held in check only by the power of impeachment. Rather, as Alexander Hamilton wrote in Federalist No. 78, the federal judiciary would be checked, at least, by both the executive and legislative branches of the federal government.


(8) See, e.g., Chief Justice Harlan Fiske Stone’s claim in United States v. Butler, 297 U.S. 1, 78-79 (1936) (Stone, J., dissenting), that “while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.”



According to Federalist No. 78, a court order is not self- executing, but “ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” And so it is according to Article II, § 3, which states that it is the duty of the President “to take care that the laws be faithfully executed.” Thus, if a court order is contrary to the law of the Constitution, it is the President’s duty to decline to enforce such an order. If he does not, then he has failed to honor his oath of office to “preserve, protect, and defend the Constitution of the United States .” Recently, however, presidents have been so compliant that some federal courts have even forgotten this Court’s rulings that the President is not personally amenable to federal court jurisdiction in matters concerning the performance of his official duties. See Franklin v. Massachusetts , 505 U.S. 788, 802 (1992) (plurality). This salutary rule is, as Justice Scalia noted, necessary to preserve the constitutional structure of separation of powers, and its concomitant system of checks and balances. Id. at 826-29 (Scalia, J., concurring). Hence, law suits brought to test the constitutionality of the exercise of federal executive power name as parties defendant persons of cabinet rank whose duties are ministerial (see, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)), thereby preserving the President’s independence to act according to his constitutional oath. See Franklin, 505 U.S. at 828 (Scalia, J., concurring).

This rule limiting the jurisdiction of the federal courts is equally applicable to state officials who have taken a similar oath “to support this Constitution.” As Madison noted in Federalist No. 51, the distribution of power between the United States government and the governments of the several states was designed to provide a check upon the centralization of power. Nowhere is this federalist principle more evident than in the original purpose of the Establishment Clause. From the beginning, it has been the role of the several states, not the United States , to foster the virtues thought necessary to



establish and preserve a self-governing people. Accordingly, the 1776 Virginia Declaration of Rights declared “{t]hat no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” Constitution of Virginia, Bill of Rights ( June 12, 1776), reprinted in Sources of Our Liberties 313 (Perry rev. ed., Amer. Bar Found. ed. 1978). Furthermore, from the beginning, America ’s founders understood that the fostering of moral excellence was a task intimately tied to religious teaching. As George Washington put it in his Farewell address, “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” G. Washington, Farewell Address, reprinted in George Washington. A Collection 521 (W. B. Allen ed. 1988).

When Chief Justice Moore placed the monument containing excerpts from the Ten Commandments in the rotunda of the Alabama State Judicial building, he was truly following the tradition of the founders to acknowledge God as the source of the community morality so essential to a self-governing society. By enjoining the Chief Justice to remove the monument, the courts below have compromised the highest judicial officer of the state of Alabama , requiring him to violate his oath of office or risk being held in contempt of court. This is a blatant misuse of federal judicial power, taken in disregard of the Chief Justice’s role in our federal system to preserve the rule of law by serving as a check and balance against the issuance of unlawful orders.


For the reasons stated, Chief Justice Moore’s petition for a writ of certiorari should be granted.


Respectfully submitted,



P.O. Box 43934

Birmingham, AL 35243





P.O. Box 231264

Montgomery, AL 36123


Attorneys for Petitioner

*Counsel of Record


Deputy Attorney General

for the State ofAlabama


2400 Carolina Road

Chesapeake, VA 23322



Deputy Attorney General

for the State ofAlabama

2011 Central Avenue

Cheyenne, WY 82001


September 26, 2003