Tuesday, May 3, 2011

Sometimes judicial philosphy has nothing to do with it.

Probably because he has been keeping this blog afloat while I dealt with some nasty health and work issues, Mr. Torvik made a rare misstep recently. While discussing Wisconsin Supreme Court justice David Prosser's age and the proper focus of judicial elections, he pointed to the recent Iowa retention elections as an example of a proper judicial election. Mr. Torvik wrote:

What should a judicial election be about? In my view, it should be solely about judicial philosophy. For example, the campaign to "unretain" the three justices who joined the Iowa Supreme Court's unanimous decision overturning the state's law banning same-sex marriage was at least focused on an issue of judicial philosophy: restraint versus activism. You can argue the merits of the issue all day long, but at least it was an argument about judging. Unfortunately, those are not the kind of issues being argued about in the recent Wisconsin judicial elections.
As discussed in Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices," the debate over the theories of judicial restraint versus judicial activism began in the 1930s when Franklin Roosevelt's various appointees to the Supreme Court started arguing over how to rule on New Deal legislation. Judicial activism, defined by Black's Law Dictionary as a philosophy of judicial decision-making that allows judges to use their personal views about public policy to guide their decisions, was practiced by Justice William O. Douglas. Judicial restraint, the theory that judges should defer to the Legislature about matters of public policy, was practiced by Justice Felix Fankfurter. Mr. Feldman's book is a good read and I heartily recommend it. Mr. Feldman points out that the first proponent of Originalism was liberal Justice Hugo Black. An interesting counterpoint the next time some swell at a cocktail party says that originalism is a doctrine made by conservatives to rule the way they wish to rule. I digress, however.

As a person who is inordinately proud to have been born in Iowa, I would love to believe that Iowa voters went to the polls to thinking about whether Justice Douglas or Justice Frankfurter was correct. However, I don't think there is any evidence that suggests Iowans were considering these things. They were thinking about a specific ruling, not the judicial philosophy behind the ruling. Put another way, the retention election appears to have been about anti-gay bias. First, as this article notes, 57% of voters in Iowa's recent judicial retention elections "opposed gay marriage." Moreover, the article also notes that two out of state anti-gay marriage groups, the American Family Association and the Family Research Council, spent nearly $700,000 in television ads and other efforts to defeat the justices. Are we to believe that if the justices in Iowa had found a right to gay marriage while practicing judicial restraint, that these groups would not have spent money to defeat them? The Iowa Court of Appeals judges, who also ruled in favor of gay marriage, were not defeated. If the election had been about judicial philosophy, one would expect a similar defeat. The appellate court judges weren't defeated because Because they weren't targeted by the interest groups. Judicial philosophy had nothing to do with it.

As I noted here, the results of the Iowa retention election are depressing. The results tell judges if they want to keep their job, they need to rule in favor of the majority regardless of whether the rights of the minority are being trampled and without regard for any particular philosophy of judicial interpretation. There is no way that is a good result and certainly not one that should be held up as an example of a good judicial election.


  1. Good points. I'll respond separately. But let me say this straightaway: If you think my missteps are rare, you are not paying attention.


Comments on posts older than 30 days are moderated because almost all of those comments are spam.