Legal Commentary

Three Iowa Justices Defeated For Same-Sex Marriage Ruling

By Todd Zywicki

Three Iowa Supreme Court Justices were tossed as a result of their votes mandating that same-sex couples be allowed to marry.  They are the first Justices who failed to be retained since 1962, when the current system was implemented.

Although I don?t understand the complaint of Drake University Law School Dean Allan Vestal that this was a ?misuse? of the right of voters to vote on judicial retention.  Isn?t this exactly what the retention power is intended to do?

In Federalist 51 Madison defined the fundamental challenge of constitutional government: ?In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.?  There is no solution to this, just a tradeoff.  You can increase the independence of elected officials, which makes it easier for the government to control the governed by insulating them from majoritarian and interest-group pressures.  But if you increase independence you run the risk of increased agency costs when the government is unable to control itself?when politicians (including judges) pursue their own self or ideological interest instead of the purposes for which they are given independence in the first place.  And vice-versa: more democratic control will make politicians more responsive to the governed but also reduce the risk of agency costs.

Iowa has set up one system that tries to balance this.  If the voters of Iowa concluded that the Justices of the state Supreme Court abused their power in creating a right to same-sex marriage, and that this represents the Justices reading their own ideological views into the law, then it is entirely appropriate for them to toss some or all of the offending Justices.  That?s not a ?misuse? of the retention power; that?s what it is there for.

Whether Iowa has struck a proper balance between independence and accountability, or should balance it in some other way  is a different question.  And whether any other system has struck the balance correctly (whether more or less democratic) is also a separate question.  But having struck the balance in this manner it seems to me that this was an entirely appropriate use of the voters? recall power?to get rid of judges who the voters believe are misusing their authority to impose their personal views on the law.

Full post as published by The Volokh Conspiracy on November 03, 2010 (boomark / email).