Iowa Judicial Retention Elections are fairly unique in that just a handful of states have a system such as ours. Until two years ago it hardly made news. In 2010 when over 500,000 Iowans voted no on retaining Iowa Supreme Court Justices Marsha Ternus, David Baker and Michael Streit it sent shockwaves across the legal establishment. What? You’ve injected politics into the judicial process the Iowa Bar Association claimed! The Des Moines Register and others said we’ve tainted the judicial system as a result. I think in the two years since our judicial system didn’t collapse, and it hasn’t been undermined.
Here again we have the same players crying out against the push to vote no on Justice David Wiggins since he is up in November. It is maddening to me to see the same Iowa State Bar Association who pushed for this very retention process in 1962 speak out against it today. This is the people’s chance to evaluate judges, and it doesn’t come around that often – every eight years for a member of the Iowa Supreme Court. For what reason should we exercise this right if not for times we the people believe that a judge has overstepped their constitutional authority?
And in 2009 the entire bench did just that.
It would be easy to dismiss the activism behind ousting Justice Wiggins as an opposition to same-sex marriage. Sure that particular case was the flashpoint, but focusing on that alone would be missing the point. That point was driven home in August when U.S. District Court Judge Alan C. Kay upheld Hawaii’s Defense of Marriage Act when two women sued the state of Hawaii in order to be married instead of just entering into a civil union which is allowed under the Hawaii Code. In his ruling Kay wrote, “Nationwide, citizens are engaged in a robust debate over this divisive social issue. If the traditional institution of marriage is to be reconstructed, as sought by the plaintiffs, it should be done by a democratically elected legislature or the people through a constitutional amendment.”
Not through the courts. Why? The fundamental issue at hand – the courts do not make law. They can only interpret the law. They are to be arbiters, not legislators. Nowhere in Article III of the Constitution does it give the Courts authority to make law nor does Article V of the Iowa Constitution. This should be basic. It is the separation of powers. The Legislature writes the law. The executive branch enforces law that has been passed. The judicial branch interprets it based on the Constitution and current law, not their opinion, not popular opinion – what the Constitution says. That’s it.
Unfortunately that isn’t what was done when they declared Iowa’s Defense of Marriage Act to be unconstitutional. They ordered that same-sex marriage licenses be issued. They put themselves in the place of the legislative and executive branch. That’s the problem, not so much their view of same-sex marriage.
The Legislature needed to provide a remedy to this, not the Courts. Now take same-sex marriage out of the equation. Judicial activism knows no party or political ideology. It is something that impacts us all. Say a court determined that workers could not organize themselves into a union, and ordered all unions to be abolished. Would that be a problem then? What if they decided that students could no longer open enroll into another school district of their choice. Would you care then? What if they expanded eminent domain allowing government to take land on a whim for any reason. Would you care?
Of course you would. This retention election is about the separation of powers and the proper exercise of checks and balances afforded us in the Iowa Constitution. We the people of Iowa can provide a check on Justice Wiggins in November. We can flip the ballot over and vote no. It will make our judiciary healthier as it will serve as a warning for judges to exercise their proper role.