November 4, 2010

Public Opinion and the Rule of Law

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Former United States Supreme Court Chief Justice Warren E. Burger once cautioned that judges should “rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times.” After Iowa’ s judicial retention election on Tuesday, in which voters chose to oust three Iowa Supreme Court justices, a new breed of judges will likely rise —those that rule based on public opinion, and not on law.

In 1962, Iowa established a new merit-based judicial selection system, through which the public votes on whether to retain a particular judge for another term. For Iowa Supreme Court justices, such a vote occurs every eight years and the ballot contains a single question on it: should this Justice be retained?

At the time Iowa considered the passing of such a system, the Republican Governor of Iowa, Norman Erbe, advocated for it because he found the popular election of judges (which was the old system in Iowa) “degrading … to the Judiciary” He echoed former Chief Justice Burger in feeling “very strongly that judges should be removed from the thrust of partisan politics.” Indeed, the purpose behind the judicial retention vote system was to keep Iowa judges from being subjected to pressure from political parties, lobbyists, special interests and litigants.

Since the start of this electoral system, Iowa voters have removed only four judges from office, none of which were Supreme Court justices. The Nov. 2 decision, thus, was historic in that three Supreme Court justices were booted.

The reason for this unprecedented vote is clear. The three Justices, Chief Justice Marsha Ternus and Justices David Baker and Michael Streit, had joined the 7-0 Iowa Supreme Court opinion of Varnum v. Brien, in which the Court ruled that the Equal Protection Clause of the Iowa Constitution grants homosexual persons the same right to marry as their heterosexual counterparts. This ruling spurred groups such as the National Organization for Marriage and the American Family Association into action. These groups spent millions of dollars in their campaign to oust these Justices because of their Varnum v. Brien decision.

The leaders of this ouster campaign, according to a New York Times article, had their eye on “highlighting … judges elsewhere, including those on the United States Supreme Court, the risks associated with leapfrogging public opinion on the issue of same-sex marriage.” In campaigning against the justices, these groups characterized the justices’  actions as “legislating from the bench.”

Although it is probably appealing to many, such characterization is nothing more than inflammatory rhetoric that completely misses the mark. In reality, the Iowa Supreme Court justices did what Chief Justice John Marshall defined as the judiciary’ s role in the landmark opinion of Marbury v. Madison. They said “what the law is.” Although the legislative branch makes laws, the Constitution (in this case the Iowa Constitution) is the supreme law of the land. When these laws do not comport with the Constitution, it is “the very essence of judicial duty” to declare such laws void. In doing so, the judiciary does not usurp the powers of the legislative branch; it simply exercises its own authority. Likewise in Varnum v. Brien, the Iowa statute that defined marriage as exclusively a heterosexual right did not comport with the Iowa Constitution’ s Equal Protection Clause, and therefore the Iowa Supreme Court declared it void.

The bigger problem with the vote, however, was it set a dangerous precedent for the future. As those leading the ouster campaign have clearly proven, judges will now have to think twice before making their decisions. They cannot any longer “be totally indifferent to pressures of the times.” That is, unless they want to lose their jobs.

Dean Allan W. Vestal of Drake University Law School noted that the aggressive out-of-state special interest funded campaign against the three Iowa justices was nothing more than a “misuse [of] the judicial retention vote.” The campaign used the judicial retention vote against its stated purpose, ensuring that future Iowa Supreme Court justices will be subjected to pressure from special interests.

I’ ll end this column with a quote from the opinion that proved to be the death knell to the three ousted Iowa justices. These justices viewed their responsibility as that of “protect[ing] constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law.” It is of some importance to note that the Iowa Supreme Court held the practice of “separate but equal” unconstitutional in Iowa 86 years before the U.S. Supreme Court in Brown v. Board of Education struck it down. Will it ever be able to do so in the future?

Christian Fundo is a third-year law student. He may be contacted at [email protected] Barely Legal appears alternate Fridays this semester.

Original Author: Christian A. Fundo