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Alabama Supreme Court

Christopher Lyle McIlwain Sr., Tuscaloosa, Alabama
John McKinley
The Supreme Court of Alabama is the state's highest appellate court. It does not make or enforce the law, but rather interprets the law. The Court decides appeals from lower trial and appellate courts, decides petitions for relief by litigants in lower courts, provides advisory opinions regarding important constitutional questions, and rules on injunctions and stays.
The Supreme Court is comprised of a Chief Justice and eight Associate Justices, all of whom are elected to six-year terms by popular vote on an at-large basis. Qualifications for election consist of holding a law degree, passing an exam, being admitted to the practice of law, and residing in the state. While in office, all justices are required to comply with the Canons of Judicial Ethics which set the standards for their behavior. The Court's proceedings normally take place in the Alabama Judicial Building on Dexter Ave. in Montgomery, Montgomery County, just a few blocks from the State Capitol building. The members of the Court are assisted by their staff.
The Early Court
The Alabama Supreme Court was created in the 1819 Alabama Constitution. At the time, Alabama was a frontier state whose pioneer residents were in the throes of the Panic of 1819, a lengthy economic depression caused by a sharp decrease in the international market price of cotton. As a result, the framers of the Constitution included certain cost-cutting measures. Most significantly, the duties of the justices were initially performed by the state's five circuit judges; Clement Comer Clay (elected the first chief justice), Abner Lipscomb (later the second chief justice), Henry Webb, Richard Ellis, and Reuben Saffold, rather than judges selected only to the Court. The legislature later limited the size of the Court to three justices in 1832.
Abner Lipscomb
At this time, the justices were not elected by popular vote for specific terms. They were instead selected by a joint vote of both the Alabama State Senate and House of Representatives. The goal was to insulate members from political pressure in their decision making, but this proved to be impossible. The official qualifications for Supreme Court justices did not originally include a law school education or even a college education. Instead, admission to the practice of law by any Alabama court was the only requirement. Nonetheless, the quality of the early justices was considered excellent, although turnover on the Court was a problem, as compensation and clerical support were meager.
When the first Court convened after statehood in May 1820 in the state capital at Cahaba, Dallas County, its proceedings were conducted in a private residence. During this period, each justice could write a separate opinion on each case and these opinions were typically read to persons present during the Court's terms of court, which usually occurred only twice a year. Justices recused themselves from cases in which they had been either a lawyer or a judge in the lower courts.
The state capitol moved to Tuscaloosa in 1826, as did the Supreme Court, which began conducting its proceedings there in July 1826. After the Court's 1827 decision in Jones v. Watkins, involving claims by debtors of usury (excessive interest charges) in favor of creditors, public outrage led to an unsuccessful effort to remove by impeachment some of the members of the Court. It was a "test case" that was selected to set a precedent for how other similar cases should be decided in the future. The case also prompted the legislature to amend the Constitution to eliminate lifetime tenure and impose six-year terms. This amendment, the first to the Alabama Constitution, was ratified by popular vote in 1830. Predictably, as a two-party political system began to develop in the state, the legislature's selection of judges became increasingly politicized. In 1840, the state capital, and the Supreme Court, moved to Montgomery.
During the first half of the nineteenth century, the types of cases decided by the Court ran the gamut from criminal to civil. Common cases included disputes over transactions in land, slaves, cattle, loans, and decedents' estates, as well as claims for damages and Native American rights. These cases were decided in accordance with laws enacted by the legislature and prior precedent from other states as well as the common law of England. Over time, the Court developed its own body of precedent that then governed subsequent decisions, a doctrine known as stare decisis, or "already decided." The decisions of the Court were published in a pamphlet and in book form through the efforts of a Reporter of Decisions, (an individual selected by the court to publish decisions), as well as in newspapers around the state.
The Civil War Era Court
When Alabama seceded from the Union in 1861, the decision sparked much controversy, but the issue never came before the Alabama Supreme Court. One reason for this was likely that each of the three justices, Chief Justice Abram Joseph Walker and Associate Justices Richard Wilde Walker and George Washington Stone, had been selected by the legislature because of their support for the rights of slaveholders. The Court's devotion to the Confederate cause was demonstrated when it handed down decisions favorable to the Confederate government in a series of cases in 1863 involving laws that provided for the conscription of private citizens to be soldiers. Contrary decisions would have likely crippled the Confederate war effort.
The Civil War-era Court held its last session in January 1865. The invasion of central and south Alabama by Union forces that spring, and the ensuing declaration of martial law, temporarily suspended the operation of Alabama's entire judicial system. In the fall of 1865, a provisional state and local government was formed in accordance with U.S. president Andrew Johnson's directions.
The Reconstruction Era Court
When the Alabama legislature met in late 1865, it selected the three members of the Court, which first convened in January 1866. But in March 1867, the Alabama Supreme Court's operations were suspended once again, this time after the U.S. Congress adopted legislation implementing its own Reconstruction policies. Most significantly, the legislation provided voting rights for freedmen. In addition to this seminal, highly controversial change in state policy, the new 1868 Constitution provided for the election of members of the Court by popular vote.
The requirement for African American suffrage sparked a political firestorm led by white supremacists in Alabama, many of whom were prominent lawyers, and former Confederates and slave owners. These individuals attempted to prevent ratification of the Constitution by boycotting the vote, thus denying majority participation of the registered voters as required by Congress. They also discouraged whites from running for the various statewide offices and legislative and congressional seats that were up for election. The Constitution was overwhelmingly approved by those who did vote, and Republicans won all of the statewide elections. Thus, as a result of this boycott, white Unionists Elisha Wolsey Peck of Tuscaloosa, Tuscaloosa County; Thomas Minnot Peters of Moulton, Lawrence County; and Benjamin Franklin Saffold of Selma, Dallas County, (of the recently formed Alabama Union Republican Party) were elected without opposition in 1868. Later, Congress allowed for ratification and election by a majority of those voting and deemed that Alabama was in compliance. Alabama was readmitted to the Union in June 1868. The members of the Court were then inaugurated and it convened for its first regular session in January 1869.
Robert C. Brickell
During this time, the Republican-led Court occasionally rendered highly controversial decisions on issues arising from the war, the Confederacy's defeat, the abolition of slavery, and Reconstruction in ways resented by former Confederates. Many, such as the admission of the first African American lawyers to practice before the Court and legalizing interracial marriage, involved racial issues. Others revolved around the validity of wartime legislation and judicial decisions. The Court also dealt with commercial transactions, including the enforceability of state contracts to aid the war effort, the issuance of bonds, and the validity of wartime payments using Confederate money. As Reconstruction became increasingly violent, the Court was forced to deal with acts of the Ku Klux Klan and other white supremacist paramilitary arms of the Democratic Party, as well as election fraud by Democratic officials.
Ultimately, Democrats had a built-in political advantage because whites constituted a majority of Alabama residents of voting age. Appeals to white supremacy and solidarity, coupled with another economic depression and more election fraud and political violence, finally led to the ousting of the Republicans in the 1874 elections. No Republican would be elected to the Alabama Supreme Court until Perry Hooper of Montgomery in 1995. During this period, Robert C. Brickell, who served as Chief Justice from 1874-1884 and 1894-1898, wrote three volumes of Digest of the Decisions of the Supreme Court of Alabama that were published in stages, in 1872, 1874, and 1888; they would become popularly known as Brickell's Digest.
The Post-Reconstruction Court
N.D. Denson
Democrats took control of state government and politics in what they called the "Redemption" of Alabama, and the men they elected to the Supreme Court proceeded to systematically overrule decisions of their Republican predecessors that conflicted with the preferred norms of white supremacy. These norms would hamstring the Court from affording equal justice to black Alabamians for more than a century, until the modern civil rights era. As a consequence, the federal courts eventually became the forum of choice for persons seeking racial equality and justice.
Most decisions of the Alabama Supreme Court during the nineteenth and early twentieth century did not focus on race. They largely involved the very same mundane, routine issues addressed by earlier sessions of the Court. The size of the Court gradually increased, and until 1920, when women were given the right to vote by the Nineteenth Amendment to the U.S. Constitution, members of the court were elected entirely by male voters. Even after women earned the right to vote, no woman served on the Court until 1974, when Janie Ledlow Shores was elected. Several women have since served as Chief Justice of the Court.
Janie Shores
In theory, African Americans still had the right to vote under the 1901 Alabama Constitution. That right, however, was deliberately made a dead letter by rigged literacy tests, poll taxes, and intimidation. As a consequence, the number of African Americans registered to vote plummeted in Alabama and made the aspirations of that segment of the population easier for white politicians to overlook. This finally began to change in the 1960s as a result of new federal laws and decisions by federal courts, most notably the Voting Rights Act of 1965. It effectively forced white politicians to appease black voters and their leaders. Therefore, it was no coincidence that in 1980, Alabama governor Forrest "Fob" James appointed Oscar William Adams Jr., the first African American member of the Alabama Supreme Court. Adams was gifted and highly respected, as demonstrated by his reelections by Alabama's majority-white electorate in 1982 and 1988.
The Modern Court
Beginning in 1995, the political party affiliation of Supreme Court justices began to change from Democrat to Republican. Among the notable Republicans elected during this period were Robert Bernard Harwood Jr., of Tuscaloosa, a direct descendant of the aforementioned Reconstruction-era Republican, Chief Justice Elisha W. Peck, and the son of Robert B. Harwood Sr., a Democrat and a member of the Court from 1962 to 1975. All of the Republican members have so far been white, as were the overwhelming majority of Democrats since 1819.
Howell T. Heflin in Washington, D.C.
Perhaps the most influential figure on the modern Court has been U.S. congressman Howell T. Heflin, who served as Chief Justice from 1971 to 1977. During his tenure, he authored many notable opinions, but his greatest contribution was his leadership in the creation of the Judicial Article of 1973, which made great strides in professionalizing and modernizing the Alabama Supreme Court.
More recently, the Court gained national media attention under the leadership of Chief Justice Roy Moore, who was removed from the bench twice for ethics violations. In 2003, he lost a two-year battle over his efforts to maintain a monument to the Ten Commandments in the state courthouse in Montgomery after it was found to be a violation of the separation of church and state. Moore was instructed to remove it and was himself removed from office by Alabama's Court of the Judiciary for ignoring those orders. In 2012, he was re-elected to the office and was again removed after instructing Probate Courts in the state to disregard the U.S. Supreme Court ruling making same-sex marriage legal throughout the United States. After several court cases, Moore was suspended from the court for the remainder of his term in 2016 and resigned from office that April..

Additional Resources

Frye, Robert J. The Alabama Supreme Court: An Institutional View. Tuscaloosa: Bureau of Public Administration, University of Alabama, 1969.
Nunnelley Carol. Janie Shores: Trailblazing Supreme Court Justice. Birmingham, Ala..: Seacoast Publishing, 2012.
Published:  June 21, 2017   |   Last updated:  May 19, 2019