We’ve always known Roy Moore is lawless. It’s why Alabama Republicans voted for him.

We’ve Always Known Roy Moore Is Lawless. It’s Why Alabama Republicans Voted for Him.

We’ve Always Known Roy Moore Is Lawless. It’s Why Alabama Republicans Voted for Him.

The law, lawyers, and the court.
Nov. 13 2017 4:43 PM

We’ve Always Known Roy Moore Is Lawless

It’s why Alabama Republicans voted for him.

Beverly Young Nelson
Accuser Beverly Young Nelson points to a photograph of herself in her high school yearbook on Monday in New York after making a statement claiming that Alabama senate candidate Roy Moore sexually harassed her when she was 16.

Lucas Jackson/Reuters

We may never know for sure whether the graphic, detailed allegations of sexual abuse reported about Roy Moore are true. It seems entirely plausible, though, that the accusations of horrid and criminal assault allegedly committed decades ago by Moore against—among others—a then-14-year-old girl are correct. On Monday, a new accuser, Beverly Young Nelson, came forward with a vivid portrait of an alleged assault that took place when she was 16 years old. She accompanied her stirring testimony with a list of a number of witnesses she has told about the alleged assault over the years, a promise to testify to Congress under oath, a request that the Senate compel Moore to do the same, and a note in her high school yearbook signed “Love, Roy Moore D.A.” The statute of limitations has expired in the cases in question, but the available evidence is damning. After Nelson’s press conference, a Republican Senate leader went so far as to say that the Senate should expel Moore should he refuse to drop out of his Senate race and should the good people of Alabama choose to elect him.

The fact that there are Moore supporters lining up to alternatively paint these women as cunning partisan liars or to explain away criminal conduct as biblical and benign is indeed one of the most stunning turns in this story. That many Alabama voters have actually redoubled their support as a result of the accusations beggars belief. But the idea that it might be the alleged molesting of multiple teenage girls and women that could prove disqualifying for Moore, rather than his decadeslong contempt for the law, the courts, and the Constitution, tells us how very far we have strayed from our legal moorings at this moment in history.

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Roy Moore has long been the Joe Arpaio of the state judicial branch. He is revered not for his compliance with the rule of law, but for his long-standing performance of figurative—and literal—contempt for any legal ruling or norm with which he disagrees. Like Arpaio, he has been repeatedly disciplined for acts of contempt towards the courts over the years. And yet this behavior was rewarded with a Republican nomination for a Senate seat that has been a virtual lock for the party.

Brazen, unapologetic contempt for the rule of law is not often a trait associated with judges, much less justices. Yet, this has long been Moore’s calling card and a rallying cry for his loyal supporters. Moore’s patent defiance of the most fundamental tenets of American law should have disqualified him from public office years ago. The opposite has happened: He has been unerringly rewarded for it. We are talking about Moore’s alleged abuse because it represents depraved criminality. But his open lawlessness has been on display for decades.

Moore’s disregard for norms that date back to Marbury v. Madison was never considered disqualifying for the Alabama Republican Party, nor for the national GOP. National figures—like Senate Majority Leader Mitch McConnell, who on Monday called for Moore to drop out of the race—only broke with him over the sex crime allegations. Indeed, much like Arpaio, a pattern of disregard of the courts represents Moore’s singular previous qualification for Republicans.

In 2000, state voters elected Moore chief justice of the Alabama Supreme Court. During his truncated term on the bench, Moore built his brand with the Christian coalition through outrageous and inflammatory opinions on culture war issues. For example, Moore wrote this in a 2002 concurrence in a child custody case: “[T]he homosexual conduct of a parent—conduct involving a sexual relationship between two persons of the same gender—creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others.”

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In 2003, Moore gained national notoriety for refusing a federal order to remove from the Alabama Supreme Court building, a 5,280 pound granite monument of the Ten Commandments that he himself had commissioned. Roy Moore, chief justice, was then dethroned, losing his seat after a ruling by a state judicial ethics panel. But Roy Moore, “the Ten Commandments Judge,” was newly ascendant as a national symbol of a man not ruled by courts or law.

Following unsuccessful gubernatorial bids, in 2012, Alabama voters resurrected Moore’s judicial career, once again electing him the state’s chief justice. Moore was emboldened to use his seat to act out an imaginary screenplay, in which he was the heroic leading man and biblical prophet, and the United States Constitution was but a bit player. The federal courts? Gaffers, at best.

In 2015, Moore expressly directed Alabama judges not to comply with the U.S. Supreme Court’s decision overturning bans on same-sex marriage. Moore announced that, because, in his opinion, the Supreme Court’s decision in Obergefell v. Hodges was “manifestly absurd and unjust ... contrary to reason and divine law ... [the decision was] not entitled to precedential value.”

To be sure, many of Moore’s judicial colleagues also disagreed with Obergefell. But unlike Moore, they recognized their duty to comply with settled U.S. Supreme Court precedent. Thus, in the wake of Moore’s categorical rejection of the constraints of the American legal system, Moore’s colleagues once again dismissed him from his own court.

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In a stinging, 50-page judgment explaining his second removal from the bench, the Alabama Court of the Judiciary described him as having acted “grossly inconsistent with his duties” and cited his “incomplete, misleading, and manipulative” conduct. The court removed him from office. Once again, rather than reeling from this rebuke of his integrity, Moore simply repurposed the scalding report into the functional equivalent of a campaign ad.

Indeed, Moore has campaigned for this Senate seat on the theory that the Bible overrides federal law: “The Judeo-Christian God reigned over both the church and the state in this country, and … both owed allegiance to that God,” he has said. He thinks that “Christianity should be favored by the state” in America and that Muslims who are democratically elected to office should not be allowed to serve. He has called Islam a “false religion” and asserts that the “rule of law” demands that NFL players stand for the national anthem.

James Dobson, an emblematic Moore supporter on the Christian right, describes the disgraced justice as “a tireless champion of religious liberty, standing down those who want nothing less than to rid our nation of its Judeo-Christian foundations.” Today, that “tireless champion” of family values stands accused of, among other horrific acts, offering a 14-year-old girl alcohol and asking her to touch his penis. That it took this alleged breach for the Republican Party to maybe lose faith in him speaks to its broken constitutional values.

As Washington Post columnist Jennifer Rubin put it, even before Moore’s accusers came forward, his and Arpaio’s place in the Republican Party firmament risked “making contempt for courts into a mainstay of the GOP ideology.”

As a citizen, Roy Moore is entitled to the very due process norms that Justice Moore readily denied to others. But we need never decide whether Moore actually did the things of which he now stands accused to know one truth: He was never fit for a seat in the U.S. Senate in the first place. That the Republican Party still fails to see this will forever be to its shame. It shouldn’t take child molestation allegations to realize that lawlessness is not a credential.

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Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

James Sample is a professor at the Maurice A. Deane School of Law at Hofstra University.