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01/20/2011

Judicial Iowa-vism: Hoping Justice Kennedy swayed more by one retention vote than by Harvard Law degree

by Jeremy Hooper

Of all of the logic we hear surrounding Prop 8 and the potential decisions that higher courts might reach, this socially conservative meme inserting Iowa into some contrived "remember the Alamo" rally cry is one of the oddest:

"Personally, I believe – perhaps too optimistically – that same-sex marriage is a bridge too far for even the die-hard liberals on the Supreme Court bench. There very well may be 6 or more votes on the HausknechtSupreme Court to uphold Prop 8. And perhaps especially so after the recent Iowa judicial retention election when voters removed 3 of their justices who voted for same-sex marriage. Although safe from such elections, U.S. Supreme Court justices can still read the newspapers."

-Bruce Hausknecht, Focus on the Family

And we've even seen it more overstated than this, both audibly and in print.

Okay, so let's unpack this. Yes, it probably is true that SCOTUS justices read newspapers and even draw some sort of color from the public sentiment of the day. But consider the facts of the referenced Iowa campaign and vote:

  • The retention system was, by design, meant to de-politicize the process and protect the independent judiciary.
  • The vote was, by design, meant to be a vote on the Iowa judges' full records.
  • The process was, by design, meant to involve facts specific to Iowa, its judges, its decisions, and its people.

So is it really smart for the folks who are always accusing the courts of abuse and misuse to suggest that (a) the Iowa vote was, in fact, based on one single ruling; (b) that the stakes and implications of the "Iowa for Freedom" campaign were/are designed to send political messages; and (c) that one single state's unique retention process can and even should sway the U.S. Supreme Court in a powerful way? Is it really responsible to our democracy to suggest a highly partisan, well-financed, carefully messaged, largely faith-motivated, transparently vindictive campaign organized by non-judges should hold more weight than the scholarly studies of our highest court? And how can you possibly claim to be opposed to "judicial activism" when you are trying to use this kind of organized, activist campaign (and its subsequent majority vote) as your own judicial bogeyman?!?

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