Varnum v.

Brien was celebrated by some as a sign that Iowa was on the cutting edge of
jurisprudence. The Des Moines Register praised the Iowa Supreme Court as being
“decades ahead of the U.S. Supreme Court” in discovering new “rights.” Iowa was still
wracked by economic, infrastructure, and criminal problems, but by God, we were
among the first states to have gay marriage! Take that, Vermont! The Iowa Bar is
always out to convince the world that Iowa has the best legal system there is. As part
of this effort, it has long told citizens that they have the opportunity to “participate” in
our wonderful judicial selection and retention process.

In 2010, the citizens took the Bar at its word and expressed their displeasure by
ousting three Supreme Court justices who put their personal beliefs above the Iowa
Constitution in Varnum.

Now that this has happened, we can expect judges and other powerful Iowans to begin
calling for retentions to be removed from the constitution to secure their positions and
preserve the status quo. We can expect arguments that “single issue campaigns” are
bad for Iowa, and that justices should not have to face “political pressure.” The truth is
that Justices Streit, Baker and Ternus were not ousted solely for Varnum, but also
because their administrative decisions had angered many clerks, court reporters and
magistrate judges, though few would speak out. Most such decisions had been
calculated to remove work from the justices’ desks and deposit it on those of the
already overworked. When their funding was cut in the summer of 2009, they
eliminated the jobs of many support staff, many of whom were students or single
parents, to preserve their own comfortable salaries and benefits packages. After
Varnum, they persecuted judges who would not perform gay marriages. “Political
pressure” only means that you have to consider how your actions affect those under
your power if you want to keep your job; a cornerstone of democracy.

Iowa faces a dilemma that has faced the country for decades. The framers of our
country knew that an independent judiciary was essential to a constitutional
democracy. Therefore, they insulated the justices by giving them life tenure and
ensuring their salary could not be decreased. But who would have guessed that
unaccountable justices would set themselves up as despots? I’m not exaggerating.
Using a nebulous “right to self identity” as an excuse, Varnum declared a law
unconstitutional because it “discriminated” based on behavior. This, of course, makes
government impossible, without the law’s selective enforcement by the judiciary when
it suits their purposes.

But what to do? Measures against this type of imperialism -- impeachment,

constitutional amendments, reduction of jurisdiction – have proven too slow, too
impractical, or too dangerous to democracy. However, when Iowa adopted the Missouri
Plan in 1962, the legislature must have known that judges and justices might forget
that they were public servants. In a stroke of wisdom, the legislature inserted into the
constitution a way in which judges could be removed from the bench.
Last election, the Iowa judiciary was reminded that all branches of government receive
their authority from the governed. On November 2, 2010, the State of Iowa
accomplished what no jurisdiction has ever accomplished before: a meaningful
response to judicial activism. And that, my friends, is the cutting edge of American
jurisprudence.