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August 17th, 2011

Dissension on the Court

For a court in which dissenting opinions were once rare, they have suddenly appeared more frequent with the arrival of three new Branstad appointees.  On February 23rd the Governor appointed Iowa Court of Appeals Judge Edward Mansfield, District Judge Bruce Zager, and Davenport attorney Thomas Waterman to the Iowa Supreme Court to fill the vacancies created on November 2nd when, in an unprecedented move, Iowa voters removed three of the seven justices who created a right to gay marriage in the 2009 case of Varnum v. Brien.

While early, the first several months of the new court have shown a clear split between three of the four Varnum justices and the new Branstad appointees, with the Varnum justices almost always ending up in the unaccustomed position of being the minority.  Joined by Chief Justice Cady, the author of Varnum, the new justices have developed a largely cohesive four-three majority to serve as a check on the Court’s liberal block of Justices Wiggins, Appel, and Hecht.

In the past, Chief Justice Cady had occasionally found himself dissenting, mostly by himself, from the other Varnum justices.  For instance, the Supreme Court, with all seven Varnum justices still in office, issued 53 total opinions between September 3rd and December 30th of last year.  Of those 53 decisions, a dissenting opinion was filed only 8.5% of the time.  Four of those dissents were authored by then-Justice Cady, one of which was joined by then-Chief Justice Ternus and another joined by Justice Streit.  Justice Appel also issued a partial dissent, joined by Justices Wiggins and Hecht.

Chief Justice Cady has apparently found his majority with the arrival of three new justices, though it is unclear if he can be described as the leader of his new majority.  As the table below shows, he has only written two opinions, one of which was a disciplinary case in which justices rarely issue dissents.  The three leading opinion writers are Justices Mansfield and Waterman, two of Governor Branstad’s appointees, and Justice Wiggins, the later having written nearly as many dissents as he has majority opinions.

The Supreme Court has issued 30 decisions since April 8th, the first time the new justices took part in a decision.  (Technically there were 31 decisions, but two of them were companion cases.)  Justice Waterman took office on March 21st, Justice Mansfield on March 22nd, and Justice Zager on March 23rd.

Justice Mansfield only took part in twelve of the cases decided on or after April 8th (or 40%) due to recusals from cases on appeal from the immediate court of appeals on which he had sat.  The following table shows the statics from cases in which he participated:

Dissents were filed in 18% of the cases decided on or after April 8th, and all but a partial dissent were written by the liberal block of Justices Wiggins, Appel, and Hecht.  By contrast, a dissenting opinion was filed only 8.5% of the time from September 3rd to December 30th of last year, none of which, save for a partial dissent, were written by the justices of the liberal block.

There were eight cases decided on or after April 8th in which none of the three Branstad appointees took part because they took office after oral arguments had already been heard.  None of the Varnum justices issued a dissent.

There were fifteen total cases issued between the beginning of the year and when the new justices began to participate in decisions on April 8th.  Again, none of the Varnum justices issued a dissent.

While serious reservations remain regarding the judicial philosophy of the three new Branstad appointees, it is nice to see an increase in the diversity of thought on the state’s highest court.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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