The Judiciary: Not Despotic, But A Bullwark Of Liberty

In a post yesterday, Louis DeBroux points to the election results in Iowa which resulted in the rejection of three members of the Iowa Supreme Court primarily due to a campaign that decried their votes in favor of a ruling that legalized same-sex marriage in the state, as “one of the most important outcomes of the November 2010 elections.” While I agree with Louis that the rejection of three judges for doing their jobs is important, I have to strongly disagree that this is a positive development, or that it is ever a good idea to subject the  judiciary so directly to the popular will of an often fickle majority.

Like the social conservative groups that led the fight to defeat the Iowa Justices, DeBroux seems most concerned with the fact that the Iowa Supreme Court’s gay marriage ruling is out of sync with public will. However, that attitude completely misses the fact that one of the most important roles of the Judiciary is to stand as a bulwark agaisnt the whims of a majority seeking to impose its will on the minority in violation of their rights. The fact that a slim majority of Iowans might not support same-sex marriage is not, and should not, be relevant to the legal question of whether or not gay and lesbian couples have the right to be treated equally by the state when it comes to the benefits and privileges of the civil institution called “marriage.” In fact, it’s precisely because the majority doesn’t support it, that the right must be projected by the judiciary. That’s not “judicial activism,” it’s the judiciary doing its  job.

Of more concern to me than the debate over a two-year old same-sex marriage ruling, though, is what the results in Iowa say about the proper relationship between the judiciary and what I’ll call the “popular will.”

The judiciary works best when it is insulated from the political process as much as possible. When judges are subjected to the popular whim, or political pressures from competing branches of government, it creates the risk that their decisions will be tainted by majority will, or the influence of a powerful minority. This was a concern that was on the minds of the Founders when they were drafting the Constitution. After a history of Royal Courts that were little more than puppets of King George III, the new Americans understood the value of making the judiciary as independent as possible from outside influences. As the French political philosopher Montesequieu put it in the works that influenced James Madison and the rest of the Founders, “the independence of the judiciary has to be real, and not apparent merely.”

At the Federal level, that is accomplished by giving Federal judges at all levels life tenure, with the exception of  judges serving on certain courts that fall outside Article III of the Constitution. It’s not necessary to go that route, however, in order to shield the judicial process from the whims of popular politics as much as possible. Here in Virginia, for example, judges at the trial and appellate levels are appointed by the state legislature and subject to a retention vote by both bodies every eight or twelve years.  A system like this allows for a retention vote without exposing judges to the whims of a direct popular vote as in Iowa.

At the other end of the extreme, of course, are states like Alabama where judges at all levels are subject to contested races on a regular basis. The consequences of that have included massive contributions from trial lawyers, which has resulted in Alabama being one of the most pro-Plaintiff states in the country, and the presence on the court of men like former Chief Justice Roy Moore, who saw his position as more of a political bully pulpit than that of the classical impartial jurist. Clearly, Alabama’s experience shows that there is a point at which popular will and special interests can have an undue influence on the judicial process just like they can over the legislative process.

There’s more to this than the process by which judges are selected, though.

Whether a retention vote is indirect or direct, it strikes me as inappropriate for a judge to be removed for office based solely on the fact that some segment of the public doesn’t agree with a decision that they made.  When a court is acting in its role as the protector of minority rights, it’s inevitable that the majority isn’t going to like it. The idea that this same majority would then be able to turn around, oust that Judge, and replace him with someone who would rule the other way does serious damage to the entire notion of individual and minority rights, not to mention judicial independence. This is the reason, in the end, that an independent judiciary is a good thing, and it strikes me as a net negative for liberty that we could be entering an era when judges at the state level would be subject to the whims of a vocal political group.

Hopefully, these losses in Iowa are not the beginning of a trend.


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