1/20/2011 Des Moines Register
Written by: Miguel Schor
Professor of Law at Suffold University Law School
Visiting Professor at Drake Law School
Miguel.Schor@drake.edu
Republican legislators are currently considering whether to impeach the remaining justices of the Iowa Supreme Court because they disagree with its Varnum v. Brien decision to legalize same-sex civil marriage. This is an appallingly bad idea regardless of whether one agrees or disagrees with that decision. When politicians can change the rules of the democratic game by simply changing the judges, everyone’s rights and liberties are at risk.
The cornerstone of judicial independence is that judges may not be impeached and removed from office for making unpopular decisions. This principle has been embedded in our constitutional culture since the early days of the Republic. The Declaration of Independence complained that the British monarch made judges “dependent on his will alone, for the tenure of their offices.” Consequently the United States Constitution provides life tenure for judges. The Iowa Constitution provides for term limits subject to a retention election. We fought a Revolution, in part, to ensure that our judges would not be made dependent on the whim of politicians.
This principle was put to the test early in our history. Competitive presidential elections are deeply unsettling to new democracies. The United States had its first competitive election in 1800. The Federalists under John Adams lost the election but sought to preserve power by packing the judiciary with their political supporters. Some of these Federalist judges were highly partisan and were quite willing to publicly criticize their political opponents in ways that today we would find unacceptable.
Perhaps not surprisingly, the Republicans under Thomas Jefferson turned their attention to the Federalist judiciary once they gained political power. Their ire was aimed at Associate Justice Samuel Chase who made numerous partisan criticisms of the Republicans while on the bench. He is also the only Supreme Court Justice ever to be impeached. The impeachment was a political contest over two very different ideas of the impeachment power. The broad reading of this power, favored by Jefferson’s supporters, would allow the political branches to impeach a judge simply because he had made a false or dangerous constitutional interpretation. The narrow reading, favored by Chase’s defenders, is that judges can be impeached only for crimes, misdemeanors, and persistent behavior that brings their office into disrepute.
The Senate did not convict Chase and consequently decisively rejected a broad reading of Congress’s power to impeach and remove judges. This principle has been followed by elected officials, regardless of party affiliation, at both the state and federal level for over 200 years. We may well disagree with judicial opinions but we do not impeach our judges because we disagree with their decisions. Those legislators who disagree with Varnum v. Brien may seek to amend the Iowa Constitution but they may not impeach the judges of the Iowa Supreme Court without doing violence to one of the bedrock principles of our constitutional culture. Unless, of course, those legislators believe, much like King George III, that judges should be made dependent on legislative will.