Is it time to impeach Supreme Court justices?

The consequences of stepping over the line

Photo by Ian Hutchinson on Unsplash

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.

Photo by Tingey Injury Law Firm on Unsplash

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.

Along the Mississippi is a proud member of the Iowa Writers Collaborative. Please check out the work of my colleagues and consider subscribing to their work.

Laura Belin, Iowa Politics with Laura Belin, Windsor Heights

Doug Burns: The Iowa Mercury, Carroll

Dave Busiek: Dave Busiek on Media, Des Moines

Stephanie Copley: It Was Never a Dress, Johnston

Art Cullen, Art Cullen’s Notebook, Storm Lake

Suzanna de Baca: Dispatches from the Heartland, Huxley

Debra Engle: A Whole New World, Madison County

Julie Gammack: Julie Gammack’s Iowa Potluck, Des Moines and Okoboji

Jody Gifford: Benign Inspiration, West Des Moines

Nik Heftman, The Seven Times, Los Angeles and Iowa

Beth Hoffman: In the Dirt, Lovilla

Dana James: New Black Iowa, Des Moines

Fern Kupfer and Joe Geha: Fern and Joe, Ames

Robert Leonard: Deep Midwest: Politics and Culture, Bussey

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Tar Macias, Hola Iowa, Iowa

Darcy Maulsby: Keepin’ It Rural, Lake City

Kurt Meyer, Showing Up

Wini Moranville, Wini’s Food Stories, Des Moines

Pat Kinney, View from Cedar Valley, Waterloo

Kyle Munson: Kyle’s Main Street, Iowa

Jane Nguyen, The Asian Iowan, West Des Moines

John Naughton, My Life, in Color, Des Moines

Chuck Offenburger: Iowa Boy Chuck Offenburger, Jefferson and Des Moines

Barry Piatt: Behind the Curtain, Washington, D.C.

Dave Price: Dave Price’s Perspective, Urbandale 

Macey Spensley: The Midwest Creative

Larry Stone, Listening to the Land, Elkader

Mary Swander: Mary Swander’s Buggy Land, Kalona

Mary Swander: Mary Swander’s Emerging Voices

Cheryl Tevis, Unfinished Business, Boone County

Ed Tibbetts: Along the Mississippi, Davenport

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