Dianne McGarey, of Ankeny, Iowa, holds a sign during a rally by gay marriage opponents (Photo: AP / Charlie Neibergall)
As more state courts across the United States render difficult decisions about same-sex marriage, the political firestorm that engulfed the Iowa Supreme Court three years ago over its marriage ruling is receding in public memory.
The Iowa episode has currency today, however, especially given soaring special-interest spending in judicial elections that threatens to turn judges into politicians-in-robes. My experience at the center of the Iowa storm, meanwhile, has only strengthened my own belief in the importance of keeping politics out of the courtroom.
In 2010, Iowa voters removed two colleagues and me from the court in a retention (yes-or-no) election. Well-funded out-of-state groups and other critics fueled the ouster drive, decrying a unanimous 2009 court ruling. That decision held an Iowa statute denying civil marriage — and the benefits flowing from that status — to same-sex couples violated their right to equal protection under the Iowa Constitution. Following the ruling, the members of the court were attacked as activist judges and members of a ruling class.
Public debate about the merits of court decisions is a healthy aspect of a democratic society, yet the unprecedented Iowa ouster campaign delivered a message of intimidation and retaliation. That message is utterly inconsistent with the concept of a judiciary charged with the responsibility to uphold the constitutional rights of all citizens, not just the constitutional rights of the majority.
Unfortunately, this effort to politicize impartial courts is not receding. A report just released by two nonpartisan groups, Justice at Stake and the Brennan Center for Justice at New York University, finds that in the 2011-2012 judicial election cycle nationwide, TV advertising rose to a record $33.7 million, and special-interest groups and political parties spent a record $24.7 million toward this advertising and other election materials.
CRISIS OF PUBLIC CONFIDENCE
As a result, a crisis of public confidence in the courts is brewing. Eighty-seven percent of voters believe judicial campaign spending and independent expenditures influence courtroom outcomes, according to a poll by the report’s authors.
What these disturbing facts do not reflect is how politicization influences the way our courts make decisions. On this issue, I’d like to give an inside view.
Courts of last resort approach decision-making in two strikingly different ways, I’ve concluded from my experience and from talking to judges in other states. This difference separates impartial courts that deliberate collectively, and politicized courts that approach decisions along philosophical or ideological lines.
When judges holding diverse perspectives pursue a collegial approach to decision-making, we effectively hold each other accountable to the rule of law. A collective wisdom is brought to bear when judges listen to, and find value in, their colleagues’ different perspectives.
This collective approach delivers far better decision-making than that of courts politicized through judicial elections. Politicized courts become mini-legislatures composed of judges with preordained views who believe their opinions must be represented. When judges are chosen because they represent a philosophy or ideology, a collegial effort is no longer possible. Whoever has a majority carries the day. In this setting, how can the rule of law be applied impartially if the law shifts back and forth, depending upon the presence of a Democratic or a Republican majority? And how, then, shall the public keep its confidence in the integrity of courts?
Today, I still believe the best judicial decisions are made when judges are insulated from politics. And despite my experience in 2010, I continue to believe that judicial merit selection systems like Iowa’s, incorporating a nonpartisan screening commission and gubernatorial appointment, offer the best defense against politicized courts.
How have I arrived at this conclusion? Because my experience was the exception, not the rule, in a merit system. Because that experience opened my eyes to the reality faced every election year by prospective judges forced to campaign on partisan platforms, as they do in many other states.
And because courts composed of jurists elected on partisan platforms have an inherent polarization that can hardly be escaped.
STAYING OUT OF THE FRAY
In 2010, my two targeted court colleagues and I did our best to stay out of the fray. We declined to launch our own campaigns to win retention. We hadn’t signed up to be politicians. We didn’t want to contribute to the politicization of our courts by acting like politicians.
Last year, another Iowa Supreme Court justice took the same approach in the face of a new ouster effort by the same critics. But this time around, things were different. Defenders of nonpoliticized courts ­mounted a vigorous public education campaign and voters retained Justice David Wiggins.
The Iowa experience in 2012, unlike the events of 2010, was heartening. According to the report mentioned earlier, voters in several other states also rejected efforts in 2012 to undermine judicial independence.
These lessons show it will take continuing vigilance to counter a trend that could result in a judiciary less and less likely to be fair and impartial, and in citizens who have less and less trust in their courts.
Marsha Ternus, now in private practice, was a justice on the Iowa Supreme Court from 1993 to 2010. In 2006, she became the first woman to serve as chief justice of the state.