In November, the people of the State of Iowa voted not to retain three of their seven Supreme Court Justices. Nothing like this had ever happened before. The result received national and international attention, given the real dangers that the vote poses to separation of powers and an independent judiciary. The vote was largely caused by public dismay over the Court’s unanimous ruling, in the previous year, finding that Iowa must allow same-sex marriage. The vote against these Justices was close and the result was undoubtedly influenced by large amounts of money contributed by conservative out of state organizations. The four remaining Justices will be up for retention in subsequent years and Iowa must now fill the three vacancies through its “merit selection” process (a commission will nominate nine qualified candidates to the new Republican Governor who will select the three replacements).
What has transpired since the retention vote is that there are now calls to impeach the four remaining Justices before their future scheduled retention votes. Several Republican state legislators are contemplating the initiation of impeachment proceedings. This is distressing on a number of levels. First, it’s hard to think of a case where U.S. judges have been impeached simply because of a decision some people disagree with. Usually, serious malfeasance has been required. Second, it suggests that some in the Iowa legislature don’t view separation of powers or an independent judiciary as important values. Third, the Court now has to operate with little more than half of the Justices the Court needs to render a full compliment of decisions, with the shadow of impeachment over their shoulders.
Certainly many foreign nations have experienced situations where high court judges have been removed for issuing decisions that offend the government in power, under a variety of scenarios. But this is not the same as that. Indeed, Iowa’s situation seems less and more troubling in various ways. Several scholars have been discussing the issues raised by these developments. My Drake Law School colleague, Prof. Ian Bartrum, has argued that what transpired supports requiring a super-majority to not retain a Justice. Another colleague, Prof. Miguel Schor, opposes impeachment, but has written eloquently about the need for high courts in most countries and in states to engage in dialogue with the other branches, and to be careful about judicial supremacy.
I am struck by how these developments resonate with Gerald Rosenberg’s thesis that courts can create significant backlash when they advance far ahead of public opinion. Indeed, when Iowa’s newly selected Chief Justice gave his state of the judiciary speech in the legislature, the hostility towards him from some Republicans in the audience was palpable. However, public opinion was apparently just barely opposed to same-sex marriage. One thing is for sure — the debate in Iowa about the same-sex marriage decision, the retention result, future retention decisions, and impeachment will likely continue in some form. Fortunately, the Governor has announced he opposes impeachment, which may stem the tide on that question for the short run.