The New York Times in its Sunday edition criticized efforts in Iowa to remove three state supreme court justices for voting to redefine marriage to include same sex couples. The NY Times claims that the retention vote threatens the independence of these state judges, even though this is a routine vote that judges in Iowa face from time to time during their judicial tenures. The New York Times quotes experts who say that voters should only remove judges for general unfitness, not because of one vote in one court case. The Times paints this situation as ominous, as uninformed voters lashing out at progressive judges who are only doing their job. However, the Times failed to mention a number of factors that show that it is reasonable and responsible for Iowa voters to consider removing these three justices from the bench because of their extreme votes in the Iowa marriage case.
1. One court decision by judges can be so outrageous that the only appropriate response by voters is to remove them from office. What if the Iowa Supreme Court had voted to disband the Iowa Legislature and remove the governor from office and rule the state by judicial fiat from the Supreme Court chambers? That one decision would amply demonstrate that the justices are unfit for office, and more than justify voters deciding to remove them from office in a regularly-scheduled retention vote. Therefore, one bad decision, if it is significant enough, would be sufficient for the voters to remove those judges from office. And the marriage decision qualifies as one significantly bad decision.
2. The Iowa Supreme Court decision redefining marriage was really bad example of judicial activism- it usurped constitutional authority from the people. In Varnum v. Brien, the Iowa Supreme Court swept aside Iowa’s legal definition of marriage and imposed a redefinition of marriage by judicial decree. The Supreme Court usurped the authority of the people and their elected officials to define marriage by throwing out the definition of marriage that Iowa and all other states have shared since before the Republic was born. The Iowa Supreme Court claimed that the Iowa Constitution dictated this decision. The justices were in essence saying that they view the Iowa Constitution as elastic, giving them a blank check to reinterpret its provisions according to their predilections. Such extreme reasoning creates more than enough justification for Iowa voters to consider whether these justices should remain in their jobs at the state supreme court.
3. It is very difficult to amend the Iowa Constitution, so how else do Iowa voters respond to a renegade decision by the state supreme court? It is difficult to amend the Iowa Constitution. The Legislature must approve any proposed constitutional amendment in two consecutive legislative sessions, and only then does it go to the people. This means the people must wait several years even to get an opportunity to vote to overturn a bad court decision. It is understandable that Iowa’s overly-restrictive amendment process would aggravate the frustration felt by voters’ to this egregious act of judicial activism on marriage, and that pent-up frustration would spill over into the retention elections for these three justices.
4. Judicial activism by runaway judges threatens a balanced, healthy governmental system just as much as “mob rule” by emotional voters. The New York Times forgets that judges are people too, so they can be tempted to misuse their authority just as much as voters (who are people too) can misuse their power to vote officials out of office. The fact that morally-flawed people occupy all positions of governmental authority is the reason why the framers of the U.S. and state constitutions set up checks and balances in our governmental structures, to restrain the evil tendencies in humans by dividing governmental power among the three branches of government, with the people using their votes as the ultimate check and balance on government officials. There is nothing ominous or scary about the voters exercising this check on judges from time to time.
5. The retention vote is one major way state judges in Iowa are accountable for their actions to the people of Iowa. If justices on the state supreme Court misuse their judicial authority, one effective restraint on them is the retention vote. For the past half century or longer, Americans have battled judicial activism and debated it because it usurps power from the people and their elected officials, and constitutionalizes decisions that are best left to lawmakers and the voters. Judges are not immune from the tempation to misuse their authority, so there needs to be a restraint others can impose on judges who misuse their authority when interpreting the state constitution.
6. The Iowa situation on the retention vote might have been averted if the people could amend the Constitution by initiative. When state courts have found a right to same-sex “marriage” in their constitutions, voters in many of those states have responded by amending their state constitutions. Many of those states give its citizens the power of intiative, recall and referendum, so they can overturn judicial activism by passing a state constitutional amendment, or striking down an aberrant law, etc. That is what the voters of California did when its state supreme court struck down Proposition 22, they approved a state constitutional amendment defining marriage as one man and one woman (a federal judge has declared that amendment unconstitutional, which is a separate act of judicial activism. Needless to say, the California Supreme Court abided by the decision of the people to reverse its decision redefining marriage for same sex couples). Voters in Maine in 2009 exercised their power of referendum to veto a law legalizing same-sex “marriage” that its state legislature enacted.
Interestingly, when state voters have the power to initiate a vote on a state constitutional amendment on marriage, they do not start a major effort to recall the judges who voted to redefine marriage. But voters in Iowa have no authority to collect signatures and propose a state constitutional amendment for the people of the state to decide. In Iowa, one of the few places where voters can voice their opposition to the state supreme court’s ruling on marriage is to vote against the three justices on the ballot this November. If Iowa voters had the power of initiative to propose a state constitutional defining marriage without having to go through the legislature, this retention vote might be a ho-hum affair this November.
7. Regular people wrote and approved the Iowa Constitution – not exalted archangels from on high. Sometimes in these debates, many on the other side claim that “constitutional rights should not be put to a popular vote.” In a limited way, I understand what they are arguing. However, they take the argument much too far and basically disqualify the citizens of a state from being able to deliberate, write and amend the constitution that will govern them. Those who do not want the people voting on whether to retain the Iowa justices tend to assume that the federal or state constitutions are like Holy Scripture, written by archangels and handed down to mere mortals from Mt. Sinai, etc. But a majority of regular people enacted the Iowa Constitution, not archangels. The Iowa Constitution, with all of its important provisions, was approved by “a tyranny of the majority.” There is no reason to distrust the people’s exercise of their authority in the retention vote.
Those critical of the people’s retention vote on these judges also seem to assume that the only people qualified to interpret the Holy Scripture the state constitution are judges, who are in reality the enlightened ”high priests,” certainly not the uninformed masses of people known as ”voters” or “citizens.” But the “voters” are not second class people of inferior intellect who are eagerly awaiting their next opportunity to deprive others of their rights. These same Iowa voters approved their state constitution with all of its protections for minorities and everyone else in state. The “high priests” (judges) are not more enlightened than the “voters.” Therefore the “voters,” the people of the state, have the authority to amend the constitution and to hold the “high priests” of Iowa accountable. In November, the people of Iowa will decide whether the three justices remain on the Iowa Supreme Court.