The Iowa Constitution explicitly provides the legislature with the authority by law to determine the makeup of the members of the body who select our judges, the judicial nominating commissions. Currently, half the members of the judicial nominating commissions, are appointed by the governor and the other half are attorneys selected by the bar with one of the Iowa Supreme Court justices serving as chair. This heavy domination results in a left-leaning special interest group who are not accountable to Iowans in choosing 1/3 of our state government.

Our reform bill would keep the half appointed by the governor and the other half would be appointed by the legislature with half appointed by the majority party and half by the minority party. The governor would appoint the chair. In that mix half would have to be attorneys but they would not be elected by the bar but instead by the governor and the legislature. In this way we retain the perspective attorneys bring to the process. Removing the justice from being chair removes his influence from picking his own colleague, a clear conflict of interest. The merit selection feature is retained because judicial candidates will still be vetted by members of the commission so that the best candidates will be chosen.

The goal is to increase the accountability and transparency of the process by bringing it closer to the people’s representatives, thus giving Iowans a larger voice in who selects our judges.

About Judicial Activism

Judicial activism is the courts’ penchant for taking on the role of the legislature and making laws instead of remaining within their constitutionally defined role of interpreting the law.

Judicial activism usually results in the creation of public policy not supported by the people through their representatives that tends to be liberal and not conservative. Liberal policy ideas are often put into policy by the courts because they don’t have public support and the only way they can be enacted. This is especially true in the area of social public policy. In this way the courts drive social change, for better or for worse, and I believe for our society many times it has been for worse.

With ever-increasing power exercised by a seemingly “runaway” court, it appears to “We the People” that we have lost control of our courts. And like it or not, negative social changes get foisted upon us.

We often think of this as a problem on the federal level, but it is a problem on the state level as well.

Major Activist Decisions of the Iowa Supreme Court in the Past 10 Years

  1. Right to Life:  On the federal level as we know, the U.S. Supreme Court, in Roe vs. Wade, somehow “found” that abortion was allowed even though nothing was in the U.S. Constitution or federal law that allowed it. Likewise, our Iowa Supreme Court reinforced this type of activism in their decision to strike down the 72-hour waiting period we passed in 2017, going even farther left than the U.S. Supreme Court: they said there is a fundamental right to abortion but nowhere was this mentioned in the Iowa Constitution.  And District Court Judge Huppert struck down our heartbeat law repeating what the Iowa Supreme Court said.
  2. Same-Sex Marriage:  The Iowa Supreme Court, in a unanimous decision no less, “found” a right to same-sex marriage in the Iowa Constitution. Nowhere is this to be found in the Iowa Constitution.
  3. Wrongful Birth:  The dissenting judge, Justice Mansfield, blasted the majority on the Iowa Supreme Court in 2017 for aggressively moving forward beyond the law when Iowa law was silent on the issue of “finding” a right to a wrongful birth claim. Mansfield said that it is the legislature’s job and not the courts to take the initiative on matters of public policy. (We passed a prohibition on the right to a wrongful birth claim in Iowa law in 2018, thus “chasing” the Court’s bad decision and doing an “end run” around it.)
  4. Voter ID:  The Iowa Supreme Court struck down a key component of our 2017 Voter ID law by striking the requirement for a voter to provide their Voter ID number on the absentee ballot application. You have to twist your mind into knots to figure out how this requirement violated the Iowa Constitution’s provisions regarding the right to vote, due process, equal protection and freedom of speech as plaintiffs claim it did.
  5. Immigration:  In a 4-3 decision, the Iowa Supreme Court said the state could not prosecute the child (now 31) of illegal immigrants for identity theft and forgery because, since the child is illegal, that would fall under federal jurisdiction. The child had used a borrowed birth certificate and Social Security card to get an Iowa drivers’ license at age 17 as well as her job. Then under DACA, she got a Social Security card and drivers license under her real name. This ruling means Iowa law enforcement cannot prosecute for crimes committed under state law, such as identity theft and forgery in this case if the offender is illegal. What other state laws will illegals be allowed to break without being able to be brought to justice? Under this ruling, illegals have more protection than do Iowa citizens! This ruling defies common sense!
  6. Limiting Law Enforcement: In 2013 the Iowa Supreme Court ruled that agreements parolees’ sign when they leave prison consenting to a search while they’re on parole isn’t valid, so police must get a warrant to search parolees’ homes.  A year later in a 2014 decision, the Court ruled that police must also get a warrant to search a probationer’s house.  In both cases, not only was the Iowa Supreme Court to the left of conflicting rulings by the U.S. Supreme Court, but the Iowa Supreme Court was even to the left of Justice Ginsburg’s position on the U.S. Supreme Court!
  7. Juvenile Criminals:   Going way beyond a U.S. Supreme Court decision holding that a life sentence without parole for a juvenile delinquent is unconstitutional, in 2014 the Iowa Supreme Court ruled that any mandatory minimum sentence for a juvenile —no matter how short—is cruel and unusual punishment and thus in violation of Iowa’s constitution.   No other court has followed this ruling, and several courts (including those in California, Illinois, and Connecticut) have expressly rejected it.
  8. Guns in Courthouses: Chief Justice Cady issued an order banning firearms in courthouses, thus overstepping his bounds of authority going outside of the Judicial Branch to the county-controlled areas. When this was protested he retracted to saying the ban applies only in the Judicial Branch-controlled areas of the courthouse and that the counties are free to set their policies regarding the rest of the courthouse. Even though he rightly retracted, this illustrates the mindset of activism that exists in the court.

This is the first of a two-part series.

Photo credit: Ctjf83 via Wikimedia Commons (CC-By-SA 3.0)

1 comment
  1. Again, I have to offer a mild dissent to the proposed judicial reform plan. There is no guarantee that this plan will somehow head off judicial activism. The current system has produced good conservatives as well as progressives, and the problem of judicial activism is centered on the Supreme Court, not district judges. Iowa does in fact have one of the most liberal supreme courts in the country, but this is because the liberal justices were appointed by liberal governors, not because of the selection process. Even if the reform plan is enacted, a liberal governor and liberal legislators will have opportunity to put like-minded people on the Supreme Court. The solution to judicial activism is to elect conservative governors. Progressive rulings can be and should be dealt with by legislation and constitutional amendment.

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