Judge W. Brevard Hand-Judge Alex T.Howard Chapter of the Federalist Society for Law and Public Policy Studies, Mobile, Alabama
The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of…
The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.
William Brevard Hand was born on January 18, 1924 and passed away on September 6, 2008. He was a United States District Judge for the Southern District of Alabama. His philosophy epitomizes what the Mobile, Alabama Chapter of the Federalist Society stands for.
Born in Mobile, Alabama, although his family hailed from the legal and intellectual center of Shubuta, Mississippi; Hand served from 1943 to 1946 in the United States Army during World War II. In 1947, he received a Bachelor of Science from the University of Alabama at Tuscaloosa. In 1949, he was awarded his LLB from the University of Alabama School of Law. He was in private practice in Mobile, Alabama from 1949 to 1971.
Hand became involved in the Republican Party in 1962, when he supported James D. Martin of Gadsden for the U.S. Senate against the veteran Democrat J. Lister Hill of Montgomery. He later served as Chairman of the Mobile County Republican Party.
On July 26, 1971, Hand was nominated by U.S. President Richard M. Nixon to a seat on the United States District Court for the Southern District of Alabama, vacated when Judge Daniel H. Thomas took senior status. Hand was confirmed by the United States Senate on September 21, 1971, and received his commission on September 22, 1971. He served as chief judge from 1981 to 1989 and assumed senior status on January 19, 1989.
Known for his intelligence, dry wit, and tenacity, he corrected many an Ivy League educated lawyer on the "Real Rules of Court", especially when they happened to be employed by the Internal Revenue Service.
Judge Hand received national attention when he ruled in the case of Ishmael Jaffree v. The Board of School Commissioners of Mobile County, United States District Court, S.D. Alabama, Southern Division (554 F.Supp. 1104; 1983), in which local lawyer/activist, Jaffree filed suit claiming his children were being harmed by the simple prayers being said before lunch. (Most of the legal citations have been omitted for space. See Judge Hand's Order for full citations and authority).
After a trial in U.S. District Court, Judge Hand, in an attempt to restore order to the universe, issued an Opinion and Order, which at one time was considered to be mainstream legal jurisprudence. It held, in part: (1) that the First Amendment in large part was a guarantee to states which insured that the states would be able to continue whatever church state relationship existed in 1791 and (2) because establishment clause of First Amendment does not prohibit the state from establishing a religion, prayers offered by the teachers in the case were not unconstitutional.
This was "Horn Book Law" until the destruction of federalism and America's unique federal system, starting with the presidency of Abraham Lincoln and continuing through other presidents who also did not respect the fine balance between the state and federal government.
Judge Hand, no doubt, knew what the existing legal establishment would do to his Order. In fact he wrote:
"Perhaps this opinion will be no more than a voice crying in the wilderness and this attempt to right that which this Court is persuaded is a misreading of history will come to nothing more than blowing in the hurricane, but be that as it may, this Court is persuaded as was Hamilton that "[e]very breach of the fundamental laws, though dictated by necessity impairs the sacred reverence which ought to be maintained in the breast of the rulers towards the constitution." R. Berger, supra note 26, at 299 (quoting Federalist No. 25 at 158)."
Further in the Order, he wrote:
"As has been seen up to this point the establishment clause, as ratified in 1791, was intended only to prohibit the federal government from establishing a national religion. The function of the establishment clause was twofold. First, it guaranteed to each individual that Congress would not impose a national religion. Second, the establishment clause guaranteed to each state that the states were free to define the meaning of religious establishment under their own constitutions and laws."
The opinion of the Court referred to the First Amendment and quoted Story's Commentaries:
"[T]he whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions ....Probably at the time of the adoption of the amendment now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as not incompatible with the private rights of conscience and the freedom of religious worship."
Judge Hand continued:
"Thomas Jefferson is often cited along with James Madison as a person who was absolutely committed to the separation of church and state. The historical record, however, does not bear out this conclusion.
While Jefferson undoubtedly believed that the church and the state should be separate, his actions in public life demonstrate that he did not espouse the absolute separation evidenced in the modern decisions by the United States Supreme Court. For example, on October 31, 1803, President Jefferson proposed to the United States Senate a treaty with the Kaskaskia Indians which provided that federal money was to be used to support a Catholic priest and to build a church for the ministry of the Kaskaskia Indians. The treaty was ratified on December 23, 1803. As Professor Cord points out in his book, President Jefferson could have avoided the explicit appropriation of funds to support a Catholic priest and a Catholic church by simply leaving a lump sum in the Kaskaskia treaty which could have been used for that purpose. However, President Jefferson was not at all reluctant for ought that appears on the historical record to specifically appropriate money for a Catholic mission.
The historical record clearly establishes that when the fourteenth amendment was ratified in 1868 that its ratification did not incorporate the first amendment against the states. The debates in Congress at the time the fourteenth amendment was being drafted, the re-election speeches of the various members of Congress shortly after the passage by Congress of the fourteenth amendment, the contemporaneous newspaper stories reporting the effect and substance of the fourteenth amendment, and the legislative debates in the various state legislatures when they considered ratification of the fourteenth amendment indicate that the amendment was not intended to apply the establishment clause against the states because the fourteenth amendment was not intended to incorporate the federal Bill of Rights (the first eight amendments) against the states.”
Judge Hand's Order continued:
"[T]he ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." Graves v. O'Keefe, 306 U.S. 466, 491 92, 59 S. Ct. 595, 603 04, 83 L.Ed. 927 (1939) (Frankfurter, J., concurring). "By placing a premium on 'recent cases' rather than the language of the Constitution, the Court makes it dangerously simple for future Courts using the technique of interpretation to operate as a 'continuing Constitutional Convention.” Coleman v. Alabama, 399 U.S. 1, 22 23, 90 S.Ct. 1999, 2010 11, 26 L.Ed.2d 387 (1970) (Burger, C.J.). "Too much discussion of constitutional law is centered on the Court's decisions, with not enough regard for the text and history of the Constitution itself." R. Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 296 (1977). [FN39]"
In conclusion, Judge Hand held:
"Because the Establishment Clause of the First Amendment to the United States Constitution does not prohibit the state from establishing a religion, the prayers offered by the teachers in this case are not unconstitutional.
Therefore, the Court holds that the complaint fails to state a claim for which relief could be granted. There are pebbles on the beach of history from which scholars and judges might attempt to support the conclusions that they are wont to reach. That is what Professors Flack, Crosskey and the more modern scholars have done in attempting to establish a beachhead, as did Justice Black, that there is a basis for their conclusions that Congress and the people intended to alter the direction of the country by incorporating the first eight amendments to the Constitution. However, in arriving at this conclusion, they, and each of them, have had to revise established principles of constitutional interpretation by the judiciary. Whether the judiciary, inadvertently or eagerly, walked into this trap is not for discussion. The result is that the judiciary has, in fact, amended the Constitution to the consternation of the republic. As Washington pointed out in his Farewell Address, this clearly is the avenue by which our government, can and ultimately, will be destroyed. We think we move in the right direction today, but in so doing we are denying to the people their right to express themselves. It is not what we, the judiciary want, it is what the people want translated into law pursuant to the plan established in the Constitution as the framers intended. This is the bedrock and genius of our republic. The mantle of office gives us no power to fix the moral direction that this nation will take. When we undertake such course we trample upon the law. In such instances the people have a right to complain. The Court loses its respect and our institution is brought low. This misdirection should be cured now before it is too late. We must give no future generation an excuse to use this same tactic to further their ends which they think proper under the then political climate as for instance did Adolph Hitler when he used the court system to further his goals. What is past is prologue. The framers of our Constitution, fresh with recent history's teachings, knew full well the propriety of their decision to leave to the peoples of the several states the determination of matters religious. The wisdom of this decision becomes increasingly apparent as the courts wind their way through the maze they have created for themselves by amending the Constitution by judicial fiat to make the first amendment applicable to the states.
Consistency no longer exists. Where you cannot recite the Lord's Prayer, you may sing his praises in God Bless America. Where you cannot post the Ten Commandments on the wall for those to read if they do choose, you can require the Pledge of Allegiance. Where you cannot acknowledge the authority of the Almighty in the Regent's prayer, you can acknowledge the existence of the Almighty in singing the verses of America and Battle Hymn of the Republic. It is no wonder that the people perceive that justice is myopic, obtuse, and Janus-like.”
In conclusion, before dismissing the plaintiff’s complaint, Judge Hand wrote:
“If we, who today rule, do not follow the teachings of history then surely the very weight of what we are about will bring down the house upon our head, and the public having rightly lost respect in the integrity of the institution, will ultimately bring about its change or even its demise.”
Judge Hand also noted a fact that few Americans are aware of --at the time of the ratification of the First Amendment a majority of states had official state religions and those continued after the ratification, unencumbered by the First Amendment.
While Judge Hand’s Order was ultimately reversed, this opinion was obviously sound both historically and legally. It forms an intellectual basis for the foundation of Federalist Society ideas.
Judge Hand took his oath seriously and should be remembered for eternity for “preserving, protecting, and defending the Constitution of the United States”.
Judge Hand was an active member of Dauphin Way United Methodist Church, the Paul Brock Inns of Court (Mobile Alabama Chapter) as well as a number of civic groups and social groups. He maintained senior status as a U.S. District Judge until his death in Mobile in 2008.
Alex Travis Howard was born on July 9, 1924 in Mobile Alabama and died on February 10, 2011 at age 86.
Driving down from Montgomery to attend Judge Howard's memorial service, retired Alabama Chief Justice, Perry O. Hooper, Sr., said of Judge Howard, "He was one of a kind. Intelligent, principled, and dedicated to the rule of law, no matter what it cost him personally. He was also a true American Hero, having fought in the Battle of the Bulge. He is a man that I shall personally admire forever."
He graduated from Murphy High School in Mobile and then attended Auburn University. The outbreak of World War II and the epic battles he was engaged in there must have taught him the true value of an education as upon discharge he enrolled in the University of Alabama where he graduated. He then attended and received his LLB from Vanderbilt University Law School in 1950.
He served as Commissioner, U.S. District Court, Southern District of Alabama from 1956-1970.
Howard assumed a newly created position on the United States District Court for the Southern District of Alabama. This judgeship, based in Mobile, Alabama, was filled in 1986 after President Ronald Reagan’s first choice, then-U.S. Attorney Jeff Sessions, went down to defeat after a contentious confirmation hearing in the U.S. Senate. The Senate confirmed Howard just 15 days after the president nominated him.
At the time, Howard was happily ensconced in private practice at the firm now known as Johnstone, Adams, Bailey, Gordon & Harris, recalled an attorney at the firm, Tom Rue.
“I think Sen. (Jeremiah) Denton called him and said, ‘We need you to do this. We need someone who is squeaky clean and will slide right through,’” said Rue, who described Howard as a mentor.
On the bench, Howard served for 10 years before taking semi-retired “senior” status in 1996. During his tenure, he presided over a civil trial in which an all-white jury ordered the United Klans of America to pay $7 million to the family of a young black man who was lynched in Mobile in 1981.
Sitting by special designation on the Atlanta-based 11th U.S. Circuit Court of Appeals, Howard in 1997 wrote the opinion related to the infamous Amtrak Sunset Limited train crash in the Mobile-Tensaw Delta. The lower court ruled that Alabama’s wrongful death law applied to civil lawsuits in the case, but Howard determined that state law conflicted with the basic principles of admiralty law. In doing so, Howard overturned a colleague on Mobile’s federal bench, U.S. District Judge Richard Vollmer.
Judge Howard changed the course of history of Alabama, if not the nation. That cannot be said about many men but in his case, it is absolutely a fact.
Judge Howard presided over the controversial 1994 trial regarding the election of Perry Hooper, Sr. as Alabama’s first Republican Chief Justice of the Alabama Supreme Court. Democrats were several hundred votes behind in the race for Chief Justice when all the legal votes were counted.
Republican attorneys quickly learned that election materials, including paper ballots were not being secured by voting officials, as required by the Voting Right Act. With longtime Republican activist Larry Roe of Mobile acting as the lead plaintiff, Republican attorneys lead by J. Michael Druhan and Joseph S. “Rusty” Johnston of Mobile, Albert L. Jordan and B. Glenn Murdock of Birmingham and Al Agricola of Montgomery, filed suit in the U.S. District Court for the Southern District of Alabama, initially seeking preservation of all election materials in the State of Alabama as the election was a federal election covered by the Voting Rights Act. The case was assigned to Judge Alex T. Howard.
Current Alabama Circuit Judge Joseph S. Johnston, a member of the Hooper legal team, commented, years later of the assignment to Judge Howard, “Judge Howard, at first, had a ‘civics textbook’ view of how elections in Alabama were conducted, this case changed that view quickly and permanently.”
Shortly after filing the suit and obtaining an injunction preserving the status quo, an Alabama Circuit Judge issued a night-time ex parte Order that all absentee ballots be counted even if they were not witnessed or notarized as required by Alabama Law. Judge Howard quickly enjoined the enforcement of the State Court Order and the case settle down to the issue : Can the rule or law governing an election be changed after the election has already begun? This issue would come up again in 2000 during the legal battle in Florida between Bush and Gore.
Newly appointed Secretary of State Jim Bennett, who held that same position during 1994-1995, shirked his responsibility so badly that Judge Howard issued a Show Cause Order asking for justification as to why he appeared to be willfully refusing to obey the Order of a U.S. District Judge. At the urging of Judge Johnston, Judge Howard gave Bennett three hours to certify the elections results or be prepared to go to jail. Three hours, Judge Johnston noted, was the approximate travel time from Montgomery to Mobile if one obeyed the speed limit.
A partisan and nasty personal Order denying a Motion for Recusal from the Alabama Supreme Court was released, March 14, 1995 in answer to a Certified Question sent from the 11th U.S. Circuit Court of Appeals. In this Order Denying Recusal, the Alabama Supreme Court used unprecedented and highly offensive language to refer to the Republican attorneys seeking recusal of the justices who had contributed money to Sonny Hornsby. After receipt of this Order and Answer to the Certified Question, the 11th U.S. Circuit Court disregarded the Order and Answer of the Alabama Supreme Court and sent the case to Judge Howard to be tried. The Alabama Supreme Court had held that such defective and illegal ballots had always been counted in Alabama.
The issue to be tried was: "Were absentee ballots that were not witnessed or notarized routinely counted in Alabama prior to the 1994 election?" The Alabama Supreme Court had already answered: "YES", as if it were common knowledge. The decision was seen by most as highly partisan, especially since most Court members (with the exception of Maddox and Houston) refused to recuse themselves and had contributed money to their fellow Justice, Sonny Hornsby, contrary to J.I.C. Opinion 95-544.
After the non-jury trial in Mobile, in which elections officials from across Alabama testified, including Lt. Governor Don Sieglemen, Judge Howard issued his Order. Judge Howard was especially critical of Don Siegleman (currently serving time in a federal prison regarding other matters).
The Order, held, in part:
Regarding the testimony of Don Siegleman:
“The Court FINDS his testimony to be diametrically opposed to the instructions he issued to election officials while he was Secretary of State and there is no credible evidence he ever communicated his current position to anyone while he was Secretary of State.”
"He failed to provide a rational explanation of his present position and the Court found his testimony to be unworthy of belief."
"The Court FINDS Siegelman's testimony with regard to the Alabama Election Officials' Handbook, prepared by Dr. Mountjoy to be unbelievable."
"The Court FINDS Lieutenant Governor Siegelman's testimony with regard to the Alabama Election Handbook bizarre."
“Lieutenant Governor Siegelman's efforts to change the import of such instructions are incredible.”
Judge Howard further wrote in the Order:
“The right to vote remains, at bottom, a federally protected right. If the election process itself reaches the point of patent and fundamental unfairness, a violation of the due process clause may be indicated and relief under § 1983 [editor's note §42 U.S. Code 1983 ] therefore in order. Such a situation must go well beyond the ordinary dispute over the counting and marking of ballots; and the question of the availability of a fully adequate state corrective process is germane. But there is precedent for federal relief where broad-gauged unfairness permeates an election, even if derived from apparently neutral action.”
Concluding, Judge Howard continued:
“The change in the rules has resulted in extreme harm to the citizens of the State of Alabama and to Perry O. Hooper. The voters of Alabama chose Perry Hooper to serve as their next Chief Justice of the Supreme Court. However, through the efforts of those persons who wished to change the results of that election several days after the election had taken place, the voters have been denied their rightfully elected Chief Justice for almost one year. Those who voted for him, as well as Mr. Hooper, have been denied his services and the emoluments that accompany the position. When such harm is wrought by a offense against the United States Constitution it is incumbent upon a federal court to step in to protect the rights guaranteed to each citizen of this nation. This Court will not shirk its duty.”
Judge Howard concluded:
"The Court ORDERS the State of Alabama to swear in Perry O. Hooper as Chief Justice of the Alabama Supreme Court as soon after certification as practicable. Mr. Hooper shall be sworn in nunc pro tunc January 16, 1995. Mr. Hooper shall receive all of the emoluments and benefits, including all compensation, that accompany his office nunc pro tunc January 16, 1995.”
“Any orders issued by any Court of the State of Alabama that in any way conflict with the ruling of this Court are null and void and of no effect. The interpretation of the United States Constitution by a federal court is the supreme law of the land.” M'Culloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579 (1819). Roe v. Mobile County Appointing Bd., 904 F.Supp. 1315 (S.D. Ala.1995).
VICTORY, the legal team did not have to rely on the secret swearing in that Judge Johnston insisted be preformed the day before Judge Hooper turned 70. (The Alabama Constitution bars anyone from taking office as judge who as attained the age of 70. Judge Hooper was 69 when he should have been sworn in, but during the 10 month legal delay, he turned 70).
Judge Howard’s Order was affirmed by the 11th Circuit Court of Appeals and in spite of a brief stay by the U.S. Supreme Court, Judge Perry O. Hooper was sworn in as the first Republican Chief Justice in Alabama on October 19, 1995.
Judge Johnston stated of Howard: “Many judges know the law, many judges do what is right, but few judges have the courage to do what Judge Howard did, namely he applied the law and corrected a severe injustice that he saw taking place, in the face of the overwhelming weight of the political and legal establishment at the time.” Circuit Judge Joseph S. Johnston said. "If it is still awarded, Judge Howard should receive the 'Profiles in Courage Award."
“Because of the courage of Judge Alex T. Howard, the entire judicial system in Alabama changed. Judicial officials seen owing allegiance to a particular philosophy (as opposed to the Constitution) gradually retired or were defeated and a new breed of judges and justices, dedicated to the Rule of Law and the Constitution took their place. Gradually, Alabama's judicial system returned to a ‘level playing field’ and Alabama was removed from the ‘Tort Hell’ list. This would not have happened had Judge Alex T. Howard not been there and exercised, strength, knowledge, and courage.”
Outside of the courtroom, Judge Howard taught Sunday School at Dauphin Way United Methodist Church for many years and attended services with his family.
Judge Howard is survived by his wife of 59 years, Anne Boykin Howard; his son, Alexander T. Howard III of Saraland; his daughter, Catherine Dawson of Mobile; and five grandchildren.
Judge Howard’s keen understanding of the role of the federal and state governments, their respective judicial systems and his courage to stand up against injustice is an inspiration for many members of the Mobile Chapter of the Federalist Society.