Making no peace

The political outcome I found most horrifying and depressing by far came out of Iowa. From the Times:
An unprecedented vote to remove three Iowa Supreme Court justices who were part of the unanimous decision that legalized same-sex marriage in the state was celebrated by conservatives as a popular rebuke of judicial overreach, even as it alarmed proponents of an independent judiciary.


The most sustained effort to oust judges in this election cycle was in Iowa, where out-of-state organizations opposed to gay marriage, including the National Organization for Marriage and the American Family Association, poured money into the removal campaign. Judges face no opponents in retention elections and simply need to win more yes votes than no votes to go on to another eight-year term. In Iowa, the three ousted justices did not raise campaign money, and they only made public appearances defending themselves toward the end of the election.
This result is appalling to me on two levels.

The first and most obvious reason for my dismay is that, once again, people have lashed out against marriage equality. I do not now and will not ever understand how depriving me and people like me of equality and legal protection in any way improves the lives of anyone else. The amount of energy and money that goes into making our lives worse makes nobody's lives better, with the possible exception of the demagogues and leeches who make their living fueling this fire.

But a deeper reason for dismay lurks, having little to do with the proximate cause of these judges' dismissal. They lost their jobs for having made an unpopular decision. Judges must be free to make unpopular decisions. That is the entire point of having an unelected, independent judiciary. It exists in no small part to protect the rights of the unpopular against the whims of the majority.

This result does nothing to change the status of marriage equality in Iowa, thanks be to God. It reflects the persistence of a bigoted few to sway the minds of a majority afraid of change. And it makes our country and their state a little bit less free and a little bit more unjust.


  1. Let me address the deeper reason. I believe you are wrong that the judges were not free to make the unpopular decision; after all, they *did* make the unpopular decision. What judges are not free from is public accountability, and rightly so in my view. There exists no objective standard for right and wrong. Society reaches some general agreement on the fundamental principles that can and do change over time, and the law must reflect that--this is the whole point of the Living Constitution. The law doesn't descend from the heavens, perfect and unsullied by human imperfections, as the infallible guide for all. If judges are free to rule according to their conscience, with no recourse should they exceed society's mandate, that's not a good situation. Here's an extreme example... suppose a judge comes to sincerely believe that embezzlement isn't really a serious crime and therefore starts releasing embezzlers whenever possible on various technicalities (which are always available in a system that tries hard to protect the innocent). Should she face no accountability for "making the unpopular decision"?

    Judges have awesome powers as it is, and we should not add to them.

  2. I fundamentally disagree. We have an elaborate system of appeals for precisely the sort of situation you describe. For extreme situations there is the possibility of impeachment, but I absolutely think there should be isolation from "public accountability." The public has sufficient sway over the other two branches of government.

    Allow me to counter your example with my own. I have disagreed with Antonin Scalia's decisions in many, many cases. There was that whole Florida recount thing, which decided a notably important question. Lawrence v. Texas. Citizens United. Just a few off the top of my head. Not once have I thought it would be a good thing to remove him from his office. His job is to make the best decisions possible based upon his own understanding of the law, with no consideration of what anyone else thinks of it. I vote from Presidents and Senators largely to keep people like him off the SCOTUS and other federal courts, but once they're there, that's where they stay.

    The public is not the repository of all wisdom, and even it should have checks on its power.

  3. Who defines one's ethics? That is the fundamental question. If there is an external, objective standard, then sure, judges can be held solely to such a standard. But no such standard exists. Society creates the morality and ethics that are embodied in our legal system, and society can change those standards and so the legal system itself. Laws that are not accepted as just cannot ultimately prevail as a standard. Judges must ultimately be held accountable to something outside their own consciences, and that something is society itself. Routine evaluation by the public should not be a concern for a judge; if she thinks X is right, then do X and let the chips fall where they may.

    Slightly off-topic, I would argue the Supremes should not be installed for life, but should have a maximum, fixed term of office. Say 15 years, with the possibility of a 5 year renewal, but then off the Court. Octogenarians on the Court, with their weakened intellectual powers, are not in the best interest of the country, the Court, Plantiffs, and Defendants.

  4. Judges are accountable as it is, to one another and to posterity. They must explain why they decided a particular case the way they did and they must explain how they have conformed their decision-making process to established rules (or if not, why they did that). If the consensus of their colleagues, of the Congress, or even of the public is that a case was decided in an incorrect fashion, they can reverse the effects of those decisions. See, for instance, the Civil Rights Act of 1991, which statutorily reversed several Supreme Court decisions without impeaching or otherwise removing the members of the Court who decided the cases in a manner which so displeased Congress.

    Ultimately the public does have a check on the judiciary, in the form of constitutional amendments and yes, that is supposed to be an exceedingly difficult but not impossible thing to do. The point is that judges should be insulated from the vicissitudes of day-to-day politics and focus on larger, more timeless sorts of issues of what is justice and what are the freedoms protected by the Constitution.

  5. 99% of cases involve statutory interpretation or weighing evidence. It is correct that Congress may trump a court's discretion in 99% of cases by passing or amending a law. However, establishing fundamental rights is a different situation. Perfectly reasonable people like Justice Moreno may disagree with his colleagues, and much of the disagreement may be based on personal, subjective experiences.

    The issue of gay marriage involves establishing new fundamental rights--which cannot be overturned by Congress, the people, or the the executive branch. (See Marbury v. Madison, etc.) In short, the judicial power to establish fundamental rights (or, more accurately, to determine whether some entity has approved an unconstitutional law) has no outside (non-judicial) checks and balances.

    Working from the perspective that absolute power must be limited, what is the problem with the people of Iowa replacing court members they deem radical? If the judges truly believe they have made the right decision, history will vindicate them and castigate the people of Iowa. Although I agree that we must have an independent judiciary, it is unclear whether independence and lifetime employment necessarily go together.

  6. Hello, K-Yew. Glad to have a new reader.

    Let's look at something you wrote:
    If the judges truly believe they have made the right decision, history will vindicate them and castigate the people of Iowa.

    I'm not particularly interested in either judge's feeling good about his place in history nor an abstract notion like history's judgment of individuals or societies. What concerns me is a majority having the power to oppress the rights of any minority. Both the executive and the legislative branches of government are subject to fairly direct action based upon the will of the people. This leaves only the judiciary as a place minorities can go for redress of wrongs.

    It's all very well to say that the judges should have the courage of their convictions and be willing to lose their jobs based upon judgments they deem to be right. However, judges (being human) may consider this a risk not worth taking. Given the extensive power of majorities to oppress unfavored minorities, keeping judges insulated from popular will is a check on the power of the majority that I stand behind.

    I also disagree with your definition of marriage equality as a "new fundamental right." It merely enlarges a definition to include an excluded sub-population. This change has harmed precisely none of the places where marriage equality has become law. The objection of people to marriage equality has nothing to do with its "newness" and has everything to do with not particularly wanting to include gays and lesbians.

  7. Although I agree that we must have an independent judiciary, it is unclear whether independence and lifetime employment necessarily go together.

    I agree that tenure for life is not a necessary attribute of an independent judiciary. Gadfly John's proposal for limiting judicial terms of office, while not flawless, would not be inconsistent with a judiciary able to make decisions independent of political pressure.

    But when judges are removed from office as a direct result of making a single politically unpopular decision, the goal of an independent judiciary has been thwarted.

  8. If judges ought not to be subject to periodic ratification by the citizens, then don't have judicial elections. This was an *election*, not a tribunal. These judges lost an election. If it is wrong to vote against a judge because they made an unpopular decision, well, duh!

    The law is a product of society, and society can change the law, ergo, society can change its judges. Judges are not some special-case enlightened class exempt from scrutiny by their fellow citizens.

  9. Just a couple of closing thoughts:

    1) I don't have a problem, necessarily, with a term limit on judges. I think it should be lengthy term, if limited, but I don't object outright.

    2) And my entire point is that I don't believe there should be judicial elections. I am well aware that this was not a tribunal. I do object to Iowa's law outright.