Chipping Away at the Bench How we failed the judiciary in Iowa

Voter anger took a new form as the results of Iowa’s November 2010 midterm elections were revealed. In a real-life twist that would make any screenwriter envious, three of the seven Iowa Supreme Court justices—who in 2009 unanimously upheld a ruling legalizing same-sex marriage in the state—were voted off the bench. More than 60 percent of Iowans who voted filled in the little oval on their ballots that indicated “no” as the answer whether to retain the judicial services of Chief Justice Marsha Ternus and Justices David Baker and Michael Streit.

The morning after the midterm elections there was considerable shock—not only in Iowa but across the country—at the outcome of the retention vote. After all, this was the first time since Iowa’s judicial merit and retention system was adopted in 1962 that a justice had actually been voted off the bench. And it was the active and well-financed campaign to remove the justices from the bench that seemed to be the specific focus of everyone’s attention. The Des Moines Register estimated that mostly out-of-state organizations raised more than $650,000 and spent much of it on TV and radio ads. The justices were targeted for their decision on same-sex marriage, but voters were also warned about possible future decisions that would strip voters’ choices regarding family and individual freedoms, such as those related to owning a gun. In contrast, the mostly in-state supporters of the justices raised about $200,000. The justices, originally appointed to the bench, did not campaign for themselves.

For years the religious right has complained about judicial activism, whereby the decisions of state and federal jurists thwart the will of the people (read: Christian people). So they became activists themselves—judiciary activistsworking to get rid of Iowa’s Supreme Court justices over a disagreement regarding their same-sex marriage ruling. The out-of-state organizations contributing the most money to the ouster campaign were the National Organization for Marriage and the American Family Association. That’s not to say there was a lack of local support, as Rep. Steve King (R-IA) of the fifth district toured the state urging voters to turn out and vote no on retention.

The head of the ouster campaign was failed Republican gubernatorial candidate Bob Vander Plaats. “I think [the ouster] will send a message across the country that the power resides with the people,” Vander Plaats said. “It’s we the people, not we the courts.”

Aside from a basic misunderstanding of how a balanced democratic government works, Vander Plaats does make a valid point about power residing with the people. Iowa was a test case in many ways for a favorable same-sex marriage ruling in 2009. The state has now become a favorable example of using an election to oust judges that rule against the majority—or at least a majority who get out and vote.

According to a recent report released in part by the Brennan Center for Justice at New York University Law School, in the past ten years only $2 million was spent specifically on advertising in judicial retention elections—less than 1 percent of the total campaign spending in judicial elections during the same period. More than $3 million, however, was spent on retention elections this past year alone, according the Center’s report.

Iowa wasn’t the only state to face a campaign to oust non-elected state supreme court justices. However, it was the only state where the ouster was successful. In other states, such campaigns focused on issues such as abortion, taxes, and healthcare.

The ouster of the three Iowa justices didn’t change Iowa law regarding same-sex marriage; it’s still legal in the state. The votes against the justices were a power play—a bullying tactic by a majority that didn’t get its way and wanted to punish those deemed responsible. This is where the nontheistic movement—humanists, atheists, agnostics, and other freethinkers—must step in and recognize that there is some judiciary activism of our own to be done.

State court judges are more vulnerable to public pressure than federal judges, who are appointed for life. Methods vary from state to state, but state jurists are variously appointed, elected, and nominated. Re-election and retention votes are what most threaten an independent judiciary. Whether one agrees with a judge or not, parties and the public should always be confident that the only pressure those on the bench face is to be true to the law. Being able to rule on controversial cases against the prevailing opinion of the majority is a requirement all jurists face. Ousters such as the one in Iowa chill judicial opinions that go against the majority.

Despite being in Iowa at the time, I did little to assist in retaining the justices whose ruling on same-sex marriage I proudly trumpeted to friends all over the world when it came down. I didn’t fight for them, and I should have—not so much for the individuals (I only know one of the justices personally), but for the integrity of the bench; out of respect for the decisions they make, whether or not I agree, because that’s their job. That’s their role in a healthy democracy.

So the next time a group in your community begins a movement that reeks of judiciary activism, give your local nontheist group a call, email one of our national nontheistic organizations, or simply write a letter to the editor. Get active. Because protecting the integrity of the judiciary in its ideal form is the responsibility of every citizen. We mustn’t let it slowly be chipped away.

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