The Overlooked Casualties of the 2010 Elections: State Court Judges

November 3, 2010

Pundits will spend much of the coming days assigning blame or credit for the Republican party’s capture of the House of Representatives and its erosion of the Democrats’ majority in the Senate.  Few, however, have mentioned a category of overlooked casualties in the 2010 election: state court judges.

Last night, conservative voters in Iowa successfully ousted three sate Supreme Court justices who participated in a ruling last year that made the state the first in the Midwest to recognize same-sex marriages.  (CFI is proud to have participated as an amicus in that case.)  Meanwhile, similar campaigns have begun in other states against state supreme court justices whose rulings in cases involving abortion, taxes, tort reform and health care have upset conservatives.

Iowa is among the 39 states that adhere to the astonishing practice of electing some of their judges.  This practice is virtually unknown in the rest of the world, and with good reason. As the Founders of the U.S. well knew, if judges are to render objectively fair decisions based on law rather than public opinion, the judiciary must be independent.  If judges are to prevent the majority from trampling the rights of minorities and unpopular parties, they must be shielded from electoral politics, special interests, the need to raise ever-increasing amounts of money to fund elections, the force of public opinion, or fear of rebuke by powerful political forces. The Founders therefore guaranteed that federal court judges would not be elected, but would be appointed for life, subject to removal only on impeachment and conviction of “high crimes and misdemeanors.”

In the early years of the Republic, the states generally guaranteed the independence of their state judiciaries.  Beginning in the 19th Century, however, populist movements successfully transformed several state judicial systems into elected branches of state government.  In Iowa and similar states, judges are now subjected to political forces that can — and surely will — influence judicial decisionmaking.  Under the Iowan system, judges face no opponents but need to gain more “yes” votes than “no” votes to win another eight-year term. Each of the three judges received only 45 percent support however, making Tuesday the first time members of Iowa’s high court had been rejected by voters.

I am thankful that the Founders had the wisdom to shield federal judges from electoral politics.  It is difficult to imagine many important judicial decisions — from the integration of public schools, to the legalization of interracial marriages, to the decriminalization of gay and lesbian relationships — happening in a system where voters can bully judges into rejecting minority rights. 

Many conservatives hope the vote in Iowa will influence judicial opinions throughout the states. Bob Vander Plaats, who led Iowa’s campaign against the justices after losing the Republican nomination for governor, told a crowd of cheering supporters, “I think it will send a message across the country that the power resides with the people.” 

The notion that “the will of the people” rules supreme in the United States is seductive, but wrong in an important sense.  Under our system of government, political majorities cannot use the ballot box to trample the rights of minorities. And the only people standing between minority rights and a tyranny of the majority are the men and women in black robes so frequently maligned by conservative forces.

Conservative critics of the judiciary make a great show of respecting “the Constitution.”  In my judgment, their stance is unprincipled.  Judicial decisions they agree with must be respected under the Constitution and the rule of law; when shown a judicial decision they don’t like, however, they fulminate against “activist” judges and “robed masters” who are “unaccountable to the people.”  Never mind that unaccountability to political forces is an essential component of the system of government enshrined in the Constitution.

As retired U.S. Supreme Court Justice Sandra Day O’Connor recently put it , “No other nation in the world” elects its judges, “because they realize you’re not going to get fair and impartial judges that way.”  O’Connor is surely correct in observing that “Judicial independence does not happen all by itself. It’s tremendously hard to create and it’s easier than most people imagine to destroy. We must be vigilant against those who would retaliate against judges for specific judicial decisions, or who seek to undermine the ability of the courts to play their constitutionally ordained roles.”