A disagreeable ruling, it has been said, is not a sufficient reason for removing a judge from office.
Yet, in a 6-3 decision a week ago, the US Supreme Court overruled decades of precedent and ignored this country’s history — and its present — by rejecting the race-conscious admissions policies at Harvard and the University of North Carolina.
Is it any wonder polls show the court’s approval rating suffering? Ever since the decision overturning Roe v. Wade last year, Americans have increasingly lost confidence in the court. Just this week, an ABC News-Ipsos survey said 53% of Americans think partisan political views mainly determine the court’s rulings.
Supreme Court justices shouldn’t be allowed to act as super-legislators and enact by judicial fiat their own policy preferences.
As US Rep. Alexandria Ocasio-Cortez said on CNN this week, “They are expanding their role into acting as though they are Congress itself and that, I believe, is an expansion of power that we really must be focusing on, the danger of this court and the abuse of power …”
The irony is that Democratic lawmakers and liberal activists weren’t the first to call out the judicial activism of these conservative justices. It was their own peers on the US Supreme Court.
In her dissent in the affirmative action case, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote the arguments taken up by the majority had already been heard and rejected:
Lost arguments are not grounds to overrule a case. When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent. It fosters the People’s suspicions that “bedrock principles are founded . . . in the proclivities of individuals” on this Court, not in the law, and it degrades “the integrity of our constitutional system of government. ….
“At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.”
In other words, they have inflated their own power and exceeded their constitutional bounds. Thus, they should be held to account, regardless how you feel about their ruling.
If Republicans reading this essay aren’t outraged by now, they should be.
So should Democrats.
Despite what you just read above, the idea that these conservative justices should be punished, or impeached, is absurd.
Enter Bob Vander Plaats.
Vander Plaats is Iowa’s most prominent religious conservative, and he’s taking this very approach with the three Iowa Supreme Court justices who ruled last month against enforcing the 2018 state law prohibiting abortions at about six weeks of pregnancy.
The law had previously been blocked by a district court, but proponents were trying to convince the state Supreme Court to resurrect it because of subsequent abortion rulings.
The 3-3 decision (a 7th justice didn’t take part), means the law will not be enforced.
This is a big disappointment to Vander Plaats. Now he’s lobbying the governor and state lawmakers to do something about it.
In a July 2 opinion piece in the Des Moines Register, Vander Plaats accused the three Iowa justices of “malfeasance,” which he notes is grounds for impeachment.
He writes:
The irony this time is that activists and elected officials were not the first to call out these justices’ judicial activism … it was their own peers on the Supreme Court.
In an opinion of his own, Supreme Court Justice Christopher McDonald blasted his colleagues for their "results-oriented approach to deciding cases," for “failing to understand the nature of the legislative power” and instead setting themselves up as a “super general assembly.”
He goes onto quote further from McDonald’s dissenting opinion and another by Justice Matthew McDermott.
“In other words, by inflating their own power and ignoring their constitutional bounds, they performed an unjustified act contrary to law — the very definition of ‘malfeasance’ at Dictionary.com,” Vander Plaats says of the offending justices. “Thus, they should be held to account, regardless of whether one likes the outcome of their decision or not.”
Bypassing the voters
Vander Plaats was a leader in the 2010 campaign aimed at persuading Iowans to oust three of the justices who voted the year before to legalize same-sex marriage in the state. (It was a unanimous decision, but only three of the justices faced retention elections in 2010.)
The state’s legal establishment, media and others were not sufficiently vigilant, and in a stain on our history, a majority of Iowa voters who were part of a Republican wave election nationwide succeeded at throwing out the justices simply because they ruled the Constitution protects marriage equality.
Now, Vander Plaats is back at it again.
Shortly after the abortion ruling last month, he raised the idea of a similar campaign against retaining these three justices. But, as it happens, they don’t go before the people until 2028.
I also suspect Vander Plaats knows that Iowans who favor choice would flock to the polls in droves, as they have in other states when, in one form or another, abortion is on the ballot.
So instead, he suggests bypassing the people.
In his Register essay, Vander Plaats urged Gov. Kim Reynolds to call a special session of the Legislature and, at minimum, pass the same abortion ban. (Reynolds announced on Wednesday she’s convening a special session next week.)
Vander Plaats then went on to say:
The law might then be appealed, even back to the Iowa Supreme Court. But should these three justices double down and continue to play “super general assembly,” the Legislature has no choice but to impeach. Our legislative and executive branches have a constitutional duty to hold the judicial branch in check and balance.
As I say, Republicans and Democrats should be outraged.
Despite the absurdity, however, this is no empty threat. What Vander Plaats is doing is planting the seeds to undermine our Constitution’s separation of powers and putting the justices on notice that they shouldn’t rule similarly in the future, lest they lose their jobs.
I’d like to think Reynolds and legislative leaders won’t take such a radical step. But in a state with the kind of one-party rule we have these days, it’s hard to predict what they will do.
Still, as someone once said (actually, it was Bob Vander Plaats) a disagreeable ruling isn’t reason enough for removing a judge.
Let’s hope this principle applies to Iowa justices just as it should to those on the US Supreme Court.
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In the Iowa State Bar Association Newsletter on July 12 there is a referral to the article by Ed Tibbets. It refers the readers by a link to the Iowa Capital Dispatch where the full article is shown. The newsletter goes out to over 5000 members.
Thanks Ed for broaching this topic. Impeachment for unpopular opinions is dangerous and there are other options. In past years, SCOTUS would issue opinions (Loving, Gault, Brown, Griswold, that at the time were unpopular with the general public. Over time, public opinion on these opinions shifted, first nuanced, and then as with Loving, shifted into the realm of 90+% of the public supporting interracial marriage. I am careful to avoid citing public opinions to criticize or support opinions of the high court; more appropriate to use polling for other 2 branches of government. Back to our judges. I believe there will be pressure to impeach the Iowa judges, in addition to the outcomes of this special session. I would like to see other pushback; like legislators proposing a pro choice constitutional amendment-it will fail in the legislature, but will be remembered and used in the political arena.