Social Conservatives Finally Find an Activist Judge They Can Embrace

Bernard Goldberg,

For quite some time now conservative Republicans have been screaming about activist judges who put their own political opinions above the law. And they’ve been right to complain. But now, thanks to socially conservative voters in Alabama, we learn that they didn’t really mean it. What bothered them weren’t activist judges in general — just liberal activist judges. Conservative activism by a judge who gets his marching orders from the Bible is fine.

Republican social conservatives in Alabama, many of them evangelical Christians, elected former state judge Roy Moore as their nominee to run next month for the United States Senate seat currently held by Luther Strange, a conservative Republican who, in their view, wasn’t conservative enough.

And it didn’t bother those who voted for Moore that when it comes to activism on the bench, he not only makes no apologies for his disrespect for the rule of law, he pretty much brags about it.

In 2003, Moore was ousted as chief justice of the Alabama Supreme Court by the Alabama Court of the Judiciary for refusing an order from a federal judge to remove a monument to the Ten Commandments from the grounds of the state judicial building — a monument Judge Moore himself had commissioned.

Did the judge learn a lesson about going too far, about brushing aside a higher court’s order simply because he didn’t agree with it? You tell me.

In 2012, he was elected chief justice again. And again, he was removed from the bench.

In 2016, he directed county officials in Alabama to ignore a ruling — this time by the Supreme Court of the United States — on same-sex marriage. The high court had ruled that banning same-sex marriage was unconstitutional. Judge Moore disagreed, so he told county officials not to issue any same-sex marriage licenses.

It’s understandable that many social conservatives think that government grounds are the perfect place to install a monument to the Ten Commandments — and that same-sex marriage is immoral and therefore should also be illegal. But we don’t live in a theocracy, as much as many on the hard right wish we did. We live by the rule of law, which is what those same social conservatives have been preaching for many years.

But Judge Roy Moore is their folk hero, so he’s the kind of activist judge they want to be their next U.S. senator.

We’ve apparently come to a point in this country where the purists on both the extreme right and the extreme left are incapable of holding two opposing thoughts in their head at the same time. For them, it’s virtually impossible to believe that Judge Moore is right about religion but at the same time is wrong to flout the law. For the sanctimonious on the other side, it’s virtually impossible to believe that while white supremacists hold horrid views they have the right to express them without being shouted down, or worse. I recently saw a sign at a rally that said, “Hate Speech is Not Free Speech.” Except, it is.

It’s no secret that we’re a deeply divided nation, and have been for a while now. The realist in me worries that it’s going to get worse before it gets better. That is, if it does get better.