What do you do when you don’t like the ruling of the Supreme Court? In Iowa the answer is easy: get a new Supreme Court. Iowa’s system of judge retention elections makes it unique. Judges are appointed by a council, and at the end of an eight year term the public votes on whether a justice should be retained or let go. Until recently, judges didn’t have to campaign hard for retention; in fact, from 1962 to 2010 every justice was retained. There are no challengers in these judicial elections, the public simply votes for or against retention. In 2010 the system was shaken when three justices, including Chief Justice Marsha Ternus, were voted out of office.
In 2009 those three Justices, along with the rest of the Iowa Supreme Court, voted in the case Varnum v. Brien that prohibition of gay marriage was unconstitutional. The decree on gay marriage, which continues to be good law, started a social conservative outcry against the justices. In the 2010 elections conservative PACs such as the National Organization for Marriage funneled money into Iowa calling for Iowans to vote no to another term. The price of judicial retention elections went up exponentially due to outside interests. Now a fourth justice, David Wiggins, is up for a vote this fall, and both sides are fiercely campaigning.
Similar pushes against judges has occurred in Florida this year, where for the first time the Republican party has backed a plan for ousting judges. After the Florida Supreme Court, which has retention votes similar to Iowa, decided to give a new trial to a man who confessed to burning a women alive, many have questioned the merit of the justices to continue on the court. Florida Justice Peggy Quince said about the retention elections, “This is about whether or not we are going to continue to have a fair and impartial judiciary.” Quince also cautioned that, if voters didn’t watch out, judicial elections could be dominated by outside special interest groups.
But the question still remains. Should an unpopular decision lead to the ouster of justices? Many argue that the people of Iowa have spoken. They believe that the Court overstepped its judicial powers in “redefining” marriage. Iowa politician Bob Vander Plaats said about the Varnum decision, “If they’ll redefine the institution of marriage, they won’t even blink an eye when they take away your private property, when they take away your guns…” Others argue that the public already has a way to bypass a bad decision, and allowing the public to impeach a justice takes away from the court’s impartiality. After all, if the public doesn’t like the decision they can always push for a constitutional amendment banning gay marriage. Proponents of this view believe that impartiality is the highest virtue of the court. The goals of the court should not be to uphold the public will, but instead should be to uphold the Iowa constitution.
With three justices denied retention and one pending public approval it seems that it may not be much longer before the Iowa Supreme court takes another look at the Varnum decision. In the meantime, the people of Iowa need to decide if they are comfortable with a system that turns their judges into partisan political candidates accountable to the public instead of the Iowa Constitution.