Last Tuesday, while Democrats were losing control of the House and maintaining tenuous control of the Senate, three Iowa Supreme Court justices were losing their jobs.  Chief Justice Marsha Ternus and Justices David Baker and Michael Streit—three of the seven justices who recently legalized gay marriage in Iowa—were voted off the bench in the state’s retention election.  Over the years, these retention elections had been largely a matter of course.  Indeed, no Iowa Supreme Court justice had been voted out since they instituted the retention system in 1962.

Although this vote has flown somewhat under the radar compared with the national elections, its significance cannot be overstated.  In this election, as argued vehemently in a recent USA Today editorial, we see a fundamental attack on judicial independence.  Unfortunately, this campaign represents just one more step in the transformation of state judicial elections over the past decade.

The judiciary is not meant to be the battlefield for divisive policy or political debates.  To cite the Founders whom the Tea Partiers feign fidelity to, the judiciary must “be disposed to exercise WILL instead of JUDGMENT . . . .”  In extolling the virtues of a federal system providing for the appointment of judges to a life term, Alexander Hamilton wrote in Federalist #78 that if judges were appointed by popular election “there would be too great a disposition to consult popularity.”  That is precisely what we have here: a $1 million campaign to oust judges who contributed to a politically unpopular decision in the state of Iowa.  The campaign against the judges did not attack the quality of their legal abilities nor the analytical rigor of their decision legalizing gay marriage.  Instead, the campaign was waged with emotionally-charged appeals and politically-motivated distortion.  And they won.

This is precisely what the Founders feared and the Tea Party stands for.

If the Tea Party is going to continue to make its presence felt throughout America’s courtrooms—and it has already stated its intentions to do so—it is important to understand exactly how the Tea Party’s Constitution reads.  Jared Goldstein, Professor of Law at Roger Williams University School of Law, has written a new article attempting to answer this question.  The SSRN page is here.  The abstract is below:

Tea Party activists have declared that the central goal of their movement is to return the federal government to constitutional principles. The sudden prominence and power of the Tea Party movement calls for an examination of its constitutional vision. Describing that vision presents a challenge, however, because Tea Party supporters do not invoke the Constitution as a text in need of interpretation but instead as a repository of what they consider the nation’s fundamental and unchallengeable values. This essay examines the Tea Party’s vision of the Constitution in light of THE FIVE THOUSAND YEAR LEAP and THE MAKING OF AMERICA, two books written by W. Cleon Skousen in the 1980s that have been enthusiastically embraced by the Tea Party movement. Tea Party supporters have made the books best sellers, and Tea Party groups extensively use the books to educate their members about the Founding Fathers’ plan for the nation. The books, however, are decidedly strange sources to inspire a contemporary political movement. They are products of the paranoid edges of the radical right wing of the Cold War era, and their main thrust is that Founding Fathers were devout Christians who discovered certain ancient principles of government that provide the only hope to save the United States from international communism.

The Tea Party movement has embraced Skousen’s books because the movement shares with Skousen what can best be characterized as a fundamentalist vision of the Constitution. Like religious fundamentalist movements, the Tea Party movement arises in opposition to modern developments that supporters believe conflict with foundational principles. Like fundamentalist movements, the Tea Party movement reaches back to a mythic past, the foundation of the nation, to identify the fundamental principles they espouse, principles that believers perceive to be under attack – belief in God, individualism, limited government, the free market, and the sanctity of private property. To Tea Party supporters, adherence to the fundamental principles they project onto the Constitution serves to divide true believers in the constitutional faith from “anti-Americans” who would compromise or subvert the nation’s fundamental principles.

That people with such constitutional beliefs—and in many cases, stunning constitutional ignorance—plan to exert greater influence on state judicial elections is a scary thought.  Hopefully those 38 states with judicial elections will finally heed the advice of the Founders and move toward appointment of their judges.  Otherwise, we will see a cautious judiciary unwilling to render decisions contrary to the popular will.  This cannot be what the Founders had in mind.  Unfortunately, that is exactly what the Tea Party’s judiciary looks like.

For more on this important topic, see:

2004 Bloomberg Article on “The Battle over the Courts.”

For a more hopeful view, see: “Judging Iowa” – Bachelors of the Arts blog.