Bench Memos

Law Professors for Judicial Imperialism

As a fitting sequel to Iowa voters’ ejection of the three state supreme court justices who faced a retention election last November, some Republican legislators in Iowa are pressing to impeach the four remaining members of the state supreme court who were complicit in that court’s utterly implausible invention of a state constitutional right to same-sex marriage.

Berkeley law professors Jesse H. Choper and Herma Hill Kay are soliciting other law professors to sign a letter that they will send to Iowa legislators opposing the impeachment effort as “unjustified and unwise.” Their letter contends that the state supreme court’s decision (in Varnum v. Brien) “cannot amount to judicial malfeasance.” Why not? Let’s examine their reasons:

1. Choper and Kay first contend: 

Impeachment is unjustified because the Iowa Code of Judicial Conduct, like that of many other states, requires that a judge’s decision not be “swayed by public clamor or fear of criticism.” (Section 51:2.4(A)).  It is unwise because the action will surely discourage able men and women from seeking judicial office in Iowa.

It’s striking that Choper and Kay begin with such a feeble argument about why impeachment is “unjustified.” Indeed, I can’t even discern how it amounts to an argument. It’s of course true that a judge’s decision shouldn’t be “swayed by public clamor or fear of criticism.” But how does that mean—if I’m correctly discerning the suggestion (and perhaps I’m not)—that a judge therefore shouldn’t be removed from office for any decision? Surely, the argument isn’t that the fact that a decision has aroused intense criticism somehow immunizes the judges responsible for it from impeachment. Or is that the argument?

Insofar as impeachment would “discourage able men and women from seeking judicial office in Iowa,” its primary effect would surely be on those men and women inclined to regard the Varnum ruling as a responsible exercise of judicial power. All the better to discourage such folks.

2. Choper and Kay next argue that the Varnum ruling was a defensible exercise of judicial power:

Like all judges, the seven who participated in Varnum had a duty to decide the case, and they did so.  The opinion they handed down was that of a court directly and candidly grappling with the legal issues presented.  We do not see either “arrogance” or “legislating from the bench” in its words.  Indeed, the decision is by no means an outlier among state courts that have considered same sex marriage, but is similar to a series of decisions made by other state and federal courts that have explored the issue.

Choper and Kay provide an entirely conclusory defense of the Varnum ruling. For the sake of brevity, I’ll just link to, rather than restate here, some of my many critiques of Judge Walker’s anti-Prop 8 ruling as well as my briefer commentary on Varnum and similar state supreme court decisions in California, New Jersey, and Massachusetts. What such decisions have in common is an unbounded view of judicial power combined with a gross misunderstanding of the purpose of marriage. If the Varnum ruling is defensible, then the realm of representative government exists purely at the mercy of judges.

Choper and Kay are correct that Varnum is not an “outlier,” but that observation entirely begs the question whether other courts that ruled similarly were acting in a remotely responsible manner. As I’ve explained in my various critiques, they weren’t.

3.  Choper and Kay then claim:   

Most importantly, impeaching judges for the Varnum ruling would threaten the independence of the judiciary, which is a necessary prerequisite for the delivery of impartial justice. Difficult decisions should be made after careful study of the facts and law, not upon popular opinion.

So far as I’m aware, no one disputes the proposition that “Difficult decisions should be made after careful study of the facts and law, not upon popular opinion.” The question instead is whether legislators and citizens have any recourse against judges who have acted lawlessly. Iowa’s impeachment process provides one means of recourse. That’s no threat to the “independence of the judiciary,” properly understood.

4.  Choper and Kay conclude: 

Finally, if a well-reasoned but controversial judicial decision is subject to impeachment, that fact would risk producing highly destabilizing cycles of escalating impeachment reprisals as majorities shift in the legislature from one party to another. Time honored processes are currently in place for appropriate public reaction to judicial decision-making.  These include the right to vote on retaining judges of the Iowa Supreme Court, who serve for staggered eight year terms, and that right has been exercised in this case.  Impeachment, however, is an inappropriate method of response to unpopular decisions and threatens fundamental values of our system of government.

Again, this argument is question-begging. If Choper and Kay were correct that Varnum was “well-reasoned” and that objection to it showed only that it is “unpopular,” I’d agree that impeachment would be unwarranted. But I think they’re clearly wrong on both counts.


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