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October 19th, 2012

Justice Wiggins – A Career of Activism

By Nathan Tucker

In the debate over the upcoming judicial retention vote in Iowa, defenders of Justice Wiggins argue that his judicial career shouldn’t be decided solely by his vote legalizing gay marriage in Varnum.  Instead, they want “a broader legal case against Wiggins…that [digs] into other aspects of his 10 years on the court beyond Varnum.”

One finds it hard to believe that these same defenders would likewise support the retention of justices who created an inviolable property right in slaves (Dred Scott v. Sanford), or an unenumerated right to capitalism that prohibited work hour (Lochner v. New York) and minimum wage (Adkins v. Children’s Hospital) laws.

This double-standard illustrates that the argument only holds merit if one assumes that Varnum was not an act of judicial activism, or at least that it was a mild and rare case of judicial lawmaking.  But, as has been noted, Varnum is the very epitome of activism, a “hijacking [of] the Constitution [and] usurpation of the roles of chief executive and legislature.”

It isn’t that Varnum legalized gay marriage that made it activist, but the Court’s obvious disdain for the Constitution as they sought to rewrite it in accordance with their own sense of morality.  And though Varnum is the most self-acknowledging example of this attitude, there are dozens of cases in which this activism is more subtly displayed.

In 2004, for instance, Justice Wiggins joined the majority in Racing Association II to overturn the U.S. Supreme Court’s decision in the very same case.  Ironically, then-Justice Cady, the author of Varnum, dissented, arguing that “the decision of the majority causes great harm to the law, to the concept of federalism, to the doctrine of judicial economy, to the essential reliability of legal principles, and to the balance of power within our government.”

Writing for the majority in Hensler v. City of Davenport (2010), Justice Wiggins admitted that “neither this court nor the Supreme Court has created a clear test for” discovering alleged rights that are “not specifically and constitutionally enumerated.”  Undeterred, however, he assured Iowans that the Court will only create those “rights and liberties” that he believes are “objectively deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.”

In Simmons v. State Public Defender (2010), Justice Wiggins joined the majority in discovering a right to a well-paid court-appointed attorney under the Iowa Constitution.  In doing so, it not only overturned its own precedent, but rejected the U.S. Supreme Court’s relatively narrow interpretation of the right to counsel.  While never defining how much compensation may, in its view, be constitutionally sufficient, the Court specifically noted that it may be more than a “reasonable fee” and that “it is peculiarly within the judicial province” to determine what that figure may be.

The majority, including Justice Wiggins, held in Iowa v. Wing (2010) that an arrest occurs when a defendant believes he has been arrested.  In dissent, then-Justice Cady noted that “the majority literally places the power to commence a criminal prosecution in the hands, or mind, of the accused…This is the type of circumstance that results when rules and statutes become disconnected from their purpose and intent.”

In Ashenfelter v. Mulligan (2010), Justice Wiggins joined the Court in creating two new rights under the Iowa Constitution—privacy and parental rights.  While no one disputes the desirability of these protections, rights created by judicial fiat with no basis in the Constitution can be extended, restricted, and manipulated as the courts see fit.

Writing in Mall Real Estate v. City of Hamburg (2012), Justice Wiggins ruled that a local ordinance banning live nude dances was preempted by state law.  Dissenting, Chief Justice Cady, joined by Justice Waterman, called the majority’s conclusion “absurd” and risked “displacing legislative policy with judicial policy based on speculation.”

Justice Wiggins joined the majority in Pitts v. Farm Bureau (2012) to, as Justice Mansfield wrote in a dissent joined by Chief Justice Cady and Justice Waterman, “recognize a duty on the part of insurance agents that has not heretofore been recognized in Iowa.”  As Mansfield noted, “further expansion of legal liability should be backed by something more than the sprinkling of caselaw and treatise citations in the majority opinion; otherwise, the public policy in this area is best left to the legislature.”  See also Galloway v. Iowa (2010).

In short, Justice Wiggins’ career is one marked by an activism that knows no limits but his own imagination.

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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

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