N. Y. TIMES DEFENDS JUDGES' INDEPENDENCE FROM EVERYTHING AND ANYTHING

September 29, 2010

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 threatens the independence of the 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 the three justices on the ballot because of their extreme votes in the Iowa marriage case.

Let me provide you with seven reasons why the NY Times is wrong to criticize Iowa for thinking about making changes in judicial appointments.

    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 justices?  That one decision would show them 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 state 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 the voters’ pent-up frustration with this judicial activism on marriage and the overly-restrictive amendment process is spilling over into the retention elections.

    4.  Judicial activism threatens 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. 

    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, because the judges are held accountable for their actions to the voters. 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 a runaway judiciary.

    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 strikign 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. 

      However, voters in Iowa have no authority to collect signatures and propose a state constitutional amendment for the voters 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 could 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.  The voters 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.”  They assume that the federal or state constitutions are like Holy Scripture, written by archangels and handed down to mere men from Mt. Sinai, etc. They also seem to assume that the only people qualified to interpret the Holy Scripture the state constitution are the enlightened ”high priests,” called judges, certainly not the unwashed masses known as voters.   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.


We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.