Effectively combating judicial adventurism outside the original mainstream requires creating institutional changes to the judiciary while maintaining its independence. Though we must work to pass a constitutional marriage amendment that will overturn the Iowa Supreme Court’s ruling in Varnum v. Brien which legalized gay marriage, such an amendment, in and of itself, will not prevent future judicial activism.
Consequently, we also need to focus on constitutional amendments, either in the statehouse or at a constitutional convention, that will aid in combating judicial activism. While We the People have the right and duty to hold accountable the entire Supreme Court which held DOMA to be unconstitutional, voting them out of office will not, directly at least, overturn their decision.
Because only a constitutional amendment can reverse a court decision, the Constitution should be amended so as to allow for an automatic stay if the amendment process is started within forty-five days of the ruling. In addition, We the People must have the ability to effectively exercise the right of amendment through the use of ballot initiatives rather than relying on unresponsive party leaders in the statehouse.
In addition to amending the amendment process itself, the constitutional process of picking judges should be amended. By allowing the governor the ability to select judicial nominees and the senate the duty to confirm them, Iowans can allow for a debate over whether a particular nominee would follow the law as it was originally understood rather than be guided by his or her own ideology.
Not only should the selection process be changed, however, but the process of keeping judges should be changed in two significant ways—the frequency of retention votes should be increased, and judicial term limits should be established. Out of seven justices on the Iowa Supreme Court, only three stand for a retention vote this November—Chief Justice Marsha Ternus and Justices Michael Streit and David Baker.
Justice David Wiggins will not be up for retention until 2012, and Justices Mark Cady, David Hecht, and Brent Appel will not be on the ballot until 2016. The inability of the people to hold justices accountable for their unconstitutional decisions until years after they are made is unacceptable.
Currently, Supreme Court justices stand for retention votes every eight years, while appellate and trial court justices are on the ballot every six years. Such lengthy terms not only allow judicial activists to continue in office for years before they come before the voters, but they make it quite plausible that, by the time their name is placed on the ballot, their ideological adventurism will be forgotten by the voters.
In order to better hold judges accountable to the fundamental will of We the People as expressed in the Constitution, judges should stand for retention votes every two years. By creating a system whereby judges know they will have to stand before the voters in the very next election cycle, judges will be less tempted to engage in judicial activism. Though voting judges out of office should be reserved only for those cases in which judges venture outside the originalism mainstream, it should be a more immediate consequence rather than one years in the making.
Along with increasing the frequency of retention votes, judicial term limits should be established. Though, ideally, judges who engage in ideological jurisprudence unmoored from the Constitution should be removed from office by voters, the reality leaves much to be desired.
Since Iowa adopted the current system in 1962, only four judges have been removed from office, and none of them were removed for judicial activism. In fact, in 2004, voters refused to hold Woodbury County District Court Judge Jeffrey Neary accountable when he recognized an out-of-state same-sex marriage as lawfully binding in this state in order to subsequently divorce the couple.
Because retention votes have yet to hold any judge accountable who ventures outside of the originalism mainstream, term of ten years should be established as a failsafe to ensure that such judges do not necessarily continue in office until the mandatory retirement age of 72.
Currently, Iowa has five appellate judges who have served longer than a decade, and two more who will reach that milestone next year. Automatic removal from the proverbial judicial monastery to the ranks of practicing attorneys and ordinary citizens will also have the added benefit of keeping judges from becoming too enticed with their own power.
By themselves, few of these proposals will serve as much of a check on judicial activism. Together, however, constitutional amendments that would provide for temporary stays and ballot initiatives in the amendment process itself, change the way judges are nominated, increase the frequency of retention votes, and provide for judicial term limits will provide We the People with adequate tools for taming the least dangerous branch.
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