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A Right to Be Retained?



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A New York Times story from yesterday describes the handwringing that has followed the decision of Iowa voters not to retain three members of the state supreme court who had ruled that the Iowa constitution contained an unwritten mandate to redefine marriage. Prominent law professors and advocacy groups are apparently concerned that the vote threatens the independence of the judiciary.

The framers of the Iowa constitution certainly didn’t see it that way, since they provided for retention elections. Those raising this concern seem to view the independence judges enjoy as independence from responsibility and from the text and meaning of the constitution they are supposed to be interpreting. Surely adherence to the state constitution ought to be a minimum requirement for the office of state supreme court justice.

The argument made by those promoting a “no” vote on retention is pretty compelling: If the justices cannot be constrained by the constitution in a case involving marriage, what prevents them from making other extra-constitutional decisions that threaten the rights of the people of the state?



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