Iowa Supreme Court Building
Photo credit: Ctjf83 via Wikimedia Commons (CC-By-SA 3.0)

There has been concern among Iowa’s Republicans and conservatives that the judicial branch has become too powerful both at the state and federal level. Judicial overreach has always been a concern, and it was something that Thomas Jefferson addressed several times.

Marbury v. Madison decided by the U.S. Supreme Court in 1804 established the concept of judicial review, and Jefferson criticized that decision.

“This case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversions on its being merely an obiter dissertation of the Chief Justice … But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must; but …  The ultimate arbiter is the people,” Jefferson wrote to Judge William Johnson in 1823.

In 2010, the people of Iowa were the ultimate arbiter when over 500,000 Iowans voted no on retaining Iowa Supreme Court Justices Marsha Ternus, David Baker, and Michael Streit after the Iowa Supreme Court struck down Iowa’s Defense of Marriage Act in 2009.

That sent shockwaves across the legal establishment. A bill if passed into law is poised to do so again.

On Tuesday, the Iowa Senate voted 26-24 on SF 2282 which reads:

Pursuant to the provisions of Article V, section 4 of the Constitution of the State of Iowa, the general assembly declares that no statute shall be held unconstitutional by a court of this state except by the concurrence of at least five justices of the supreme court of Iowa.

The vote was along party lines with State Senators David Johnson (I-Ocheyedan), Rick Bertrand (R-Sioux City), Thomas Green (R-Burlington), and Charles Schneider (R-West Des Moines) joining Democrats voting against the bill. State Senator Julian Garrett (R-Indianaola) was the floor manager for the bill.

The Iowa Supreme Court is made up of seven justices. Four justices could literally rule over Iowans based on the current view of judicial review.

Opponents of the bill say it represents “a legislative overreach.”

Utter hogwash, the Iowa Constitution gives the Legislature that power.

Article V, Section 4 reads:

The Supreme Court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors of law, under such restrictions as the General Assembly may, by law, prescribe; and shall have power to issue all writs and process necessary to secure justice to parties, and shall exercise a supervisory and administrative control over all inferior judicial tribunals. (emphasis mine)

The Iowa Constitution is pretty clear on this.

Frankly, I think that much more needs to be done because even had this law been in effect in 2009 the outcome would have still been the same. The Legislature can also restrict judicial review for specific laws, but they have yet (to my knowledge) to pass a bill with that language. I think that is a power they need to use judiciously, but it is a power they do have.

We just need to have legislators who understand that the judicial branch does not make law, that judicial review is not “law,” but a legal opinion and the legislature can and should place a check on that power. Otherwise, we have an oligarchy in our state, not representative government.

Since we the people are the ultimate arbiters we need to take retention votes seriously. I think retention votes make the system stronger. You can vote no for any reason you like. We also need reform for how judges are selected in Iowa, it lacks transparency and is controlled by the Iowa Bar Association. It ties the hands of the Governor, and it leaves our elected representatives out of the process. Changing this would require a constitutional amendment, but I think it’s time Iowa adopts the federal system for selecting judges.

This bill is a start.

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