Unseating Judges who Legalized SSM in Iowa

[RadicalPi]

According to this article, http://news.yahoo.com/s/ap/20101025/...a_gay_marriage, there is a movement afoot to remove some of the Iowa Supreme Court judges for their (unanimous) decision that allowed for same-sex marriage in the state. But I haven't heard too much else about this situation. Does anyone know how likely this attempt is to succeed? Or if similar movements are taking place in other states? Thanks.

[RadicalPi]

I have done some research, and the latest poll from October 29 shows:

37% will vote to remove all three judges up for election,
34% will keep all of them, and
10% will keep some of them.

That leaves 19% undecided. It thus seems fairly likely that at least one judge will be removed for supporting same-sex marriage in Iowa. One wonders if this will have a chilling effect on other elected judges who have to decide the same thing.

ETA:

Cite?

ETA 2:

Here you go: http://www.desmoinesregister.com/art...axing-justices

[Uncle Jocko]

Live in Iowa. Scared by this prospect. Pissed off at the anti-SSM doofuses who came up with this campaign.

In short: Iowa's system of selecting judges is seen nationwide as a fair, mostly nonpartisan and nonpolitical affair. When a position for a justice opens, a board of various lawyerly types draws up a list of several candidates, from which the governor makes the selection. Since the 1960s, I believe, judges go on the ballot for a "retention" vote (I guess to mollify the anti-"judge for life" crowd that you hear whining sometimes). This is designed as a way to remove justices for corrupt or outrageous behavior ... not because of disagreement with a legal decision.

Well, here comes same-sex marriage! The Iowa legislature, like many other states, passed a "Defense of Marriage" law (it's still hard to write that without my eyes falling out from rolling so much) that defined marriage as between one man and one woman. Eventually, this law made it to the state Supreme Court, which (in an elegantly written and unanimous decision) ruled that it was unconstitutional, falling afoul of the state constitution's requirement for equal treatment under the law.

As you might imagine, the anti-SSM crowd was in an uproar. "Activist judges making law!" they screamed. "They won't even let you vote on it!" they hollered. "Gay people in public mocking me!" they yelled (okay, mostly in their heads, that last one). What to do? Well, let's rile up the old folks and the farmers who hate "elitists" and "queers" and get them to vote against retention of the three justices on the ballot this year.

Bob VanderPlaats, a former gubernatorial candidate (and current goober), is leader of the charge. He's getting a LOT of money from out of state, as you might imagine, and the airwaves have been clogged with "Vote No" ads. They also ponied up a ton of money for signs, which I have seen all over the eastern part of the state.

The campaign boils down to the conservatives holding their breath and throwing a massive tantrum ... "these judges were mean to me! make them go away!" Unfortunately ... it might work. The retention vote is on the back of the ballot, so it takes an extra step to get to it. All the money is on the "No" side ... there has been no such thing as judicial campaigns in Iowa, and the current justices are not about to start that trend. A pro-retention group has been set up, but it's woefully behind financially and hasn't made a lot of publicity.

We have to hope that common sense prevails here, but there's just something visceral about the anti-gay crowd that could really whip up voter turnout for their side. I fear all three of the Supreme Court justices will be voted out ... and this does not bode well for future retention votes, as the VanderPlaats crowd will see their tactics work and they will be back for more. The one small bright spot is, at least for now, the judicial selection system will remain a nonpolitical one where the most qualified candidates will be offered for the governor to choose from. But this could cause a slippery slope that might change that for the worse.

[Uncle Jocko]

Looks like all three Supreme Court justices will be unseated, with about 55% No votes. It's a very sad commentary on Iowa in general, which has historically been a forward-thinking state in the civil rights arena.

The buzzwords of "activist judges" and "denying your right to vote" -- along with tons of out-of-state money - appear to have taken the day. Apparently the idea of an independent judiciary that protects the rights of the minority isn't that important, at least when it comes to SSM. It's majority rule, dammit! Let the people speak! Give us what we want, or we take your robes away!

I didn't think the judicial branch was supposed to be treated this way. Sad. The one bright spot is that the system to select replacement justices stays the same. For now. But the chilling affect on judges statewide has to be significant.

[JXJohns]

I voted no, yes, yes. I feel that Ternus had some issues with her personal life that were not in line with being the Chief Justice of the Iowa Supreme court. The Chief Justice cannot host underage drinking parties at her house. I expect her to be better than that.

On a positive note, it appears that not a single judge other than the three SC's was removed. This shows to me that those voting no, no, no may not have been the neanderthals that they have been portrayed as. They didn't vote out the entire judiciary.

50265 Resident.

[Uncle Jocko]

Wait, what? You think because the voters didn't throw ALL the judges out that they're not "the neanderthals that they have been portrayed as"? What OTHER reasons are there for voting against the Supremes, except that you don't think gays should be able to marry?

I'm using the general "you" there, JXJohns, not you specifically. I see you had a reason for voting against Ternus, and I respect that. That's what the retention vote is supposed to be for, by the way, a method to remove judges who are or may be not qualified for whatever reason. I do fear a slippery slope in the judiciary if judges have to consider the political ramifications of their decisions, rather than simply ruling on the legal grounds of any case brought before them.

I've been trying to explain this at work, to people who keep arguing over the definition of marriage, and activist judges making law, and evil black-robed brigands coming to STEAL YOUR RIGHT TO VOTE and all that ridiculous claptrap that we kept hearing in all the Vote No! ads. Seems to me the simplest description of the ruling was: Anything a heterosexual Iowan has the right to do, a homosexual Iowan also has the right to do. It's not about marrying a goat, or your sister, or five women at once, or any of those stupid responses. A heterosexual can't do any of those things either, so a homosexual doesn't have that right. But while a heterosexual has the right to marry a person (one, not plural; person, not animal) whom they love, there are many who don't think a homosexual should have that right. Even though the Supreme Court found that right quite obvious in the state constitution.

Now, the question of whether a heterosexual has the right to only marry a person of the opposite gender, which a homosexual obviously has the right to do today, is a somewhat open question. But that is yet to be determined, and I for one would hate to come down on the side of discrimination in this matter.

My marriage has nothing to fear from SSM. Nor does anyone else's.

Not picking on you, JXJohns. I appreciate your thoughts ... I always respect those who have a solid reason for their points of view, and who can back them up with data and convincing arguments.

[JXJohns]

I believe that it shows that they actually made a choice to vote out those who they had issues with, whether right or wrong, informed or otherwise, while affirming the fact that the rest of the judiciary was doing fine. Sort of the opposite of "throw ALL of the bums out" message that I heard too often during campaign season. I honestly was concerned that the same majority would vote out every single judge on the ballot.

Not sure what your ballot looked like, but I bet I had at least 30 on there. Most folks don't vote one way or the other on those so all it would have taken was a determined few to really upset the judiciary. Since that didn't happen, I guess I still have some (misguided?) faith in my fellow Iowegians.

[Really Not All That Bright]

So you think it's appropriate that they voted against judges based on a single issue? That's more short sighted than the "throw out the bums" vote.

[Bricker]

Originally Posted by Really Not All That Bright

So you think it's appropriate that they voted against judges based on a single issue? That's more short sighted than the "throw out the bums" vote.

This potentially much more than a single issue. In other words, judges are not legislators; presumably they didn't rule the way they did because they thought same-sex marriage was wise social policy. Right?

They must have ruled the way they did because they felt the state constitution should be interpreted using a particular method. If the voters felt that this method was not the correct one, that's not a "single issue" -- that goes to the heart of what a judge's role should be.

[bup]

Originally Posted by Bricker

This potentially much more than a single issue. In other words, judges are not legislators; presumably they didn't rule the way they did because they thought same-sex marriage was wise social policy. Right?

They must have ruled the way they did because they felt the state constitution should be interpreted using a particular method. If the voters felt that this method was not the correct one, that's not a "single issue" -- that goes to the heart of what a judge's role should be.

Can you explain that again, slower?

Judges didn't rule that way because of a belief for or against SSM. With you there (at least, one hopes they didn't).

I don't see how it follows that voters decided went through that thought process and felt that the judges were using some incorrect strategy for interpreting the constitution. I think, without cite, that most voters thought, "gays getting married is wrong. That judge will pay," or something much less sophisticated than what you're positing.

[JXJohns]

Originally Posted by Really Not All That Bright

So you think it's appropriate that they voted against judges based on a single issue? That's more short sighted than the "throw out the bums" vote.

Did I say that? I certainly don't see it in my posts. I did mention that I am glad that we don't have to replace the entire judiciary, and I'm glad that those who felt strongly about voting the Supremes out left their disdain with them. I also mentioned how and why I voted the way that I did including retaining two of the three judges.

Pretty sure I didn't use the word appropriate.

[Bricker]

Originally Posted by bup

Can you explain that again, slower?

Judges didn't rule that way because of a belief for or against SSM. With you there (at least, one hopes they didn't).

I don't see how it follows that voters decided went through that thought process and felt that the judges were using some incorrect strategy for interpreting the constitution. I think, without cite, that most voters thought, "gays getting married is wrong. That judge will pay," or something much less sophisticated than what you're positing.

I'm contending they thought, "Judges shouldn't decide stuff like that."

Which is arguably true.

[Zakalwe]

Originally Posted by Bricker

I'm contending they thought, "Judges shouldn't decide stuff like that."

Which is arguably true.

Then who does? When the majority votes that niggers aren't people and don't have rights, who protects them? The courts are *specifically* there to protect against the tyranny of the fleeting majority.

Rick, I respect the hell out of you, but you've taken a weird right-wing twist over the last year that has puzzled the hell out of me. IIRC, you're married to a person that most of these tea party fucks wouldn't currently let in the country if they had an open field. We have to have some body that isn't dependent on the vote-of-the-day weirdos to keep their job or we may as well stop pretending to be anything other than a democracy.

[Bricker]

Originally Posted by Zakalwe

Then who does? When the majority votes that niggers aren't people and don't have rights, who protects them? The courts are *specifically* there to protect against the tyranny of the fleeting majority.

Rick, I respect the hell out of you, but you've taken a weird right-wing twist over the last year that has puzzled the hell out of me. IIRC, you're married to a person that most of these tea party fucks wouldn't currently let in the country if they had an open field. We have to have some body that isn't dependent on the vote-of-the-day weirdos to keep their job or we may as well stop pretending to be anything other than a democracy.

I think you mischaracterize "most of the tea party fucks." So far as I can tell, most simply favor compliance with immigration law - something my wife and I had no problem doing. I'm not aware of any major tea party candidate or group arguing a complete border shutdown.

Now, you talk about the tyranny of the fleeting majority, as if to suggest that same-sex marriage had a long and noble tradition in this country, and would still be comfortably in place, but for the fleeting desires of a hot-headed mob.

But you know that's not true. It's the crowd seeking same-sex marriage rights that is working a large change in society.

It's fascinating to me that you accuse me of some recent change, and cast your whole argument as something clearly required under the law, but for the recent wash of anti-gay fervor. you know that's not true. You're the one cloaking your argument in deceit.

There are good reasons to argue that a given states' equal protection clause covers same-sex marriage, but you cannot plausibly claim it's inevitable and the only reasonable option. It's perfectly reasonable for a person to want such a change to come from the legislature, not the courts.

[Zakalwe]

Originally Posted by Bricker

There are good reasons to argue that a given states' equal protection clause covers same-sex marriage, but you cannot plausibly claim it's inevitable and the only reasonable option. It's perfectly reasonable for a person to want such a change to come from the legislature, not the courts.

But that's not how it works and you damn well know it. Suppose the Florida Legislature passes a law that left-handed people can't vote. After all, handedness is not a protected class. Should left-handed people just give up their vote until they can convince the Legislature that they screwed up? Or should they go to a court?

[RadicalPi]

I'm so glad I'm not talking myself anymore in this thread.

That said, I'm not sure that removing judges for the content of their decisions is particularly wise unless these decisions demonstrate incoherence. I find this sort of thing worrisome, because the entire point of the judiciary is the taking the big-picture view, and such a perspective seems easier to maintain if one's job isn't on the line. Alas.

I wonder if it's possible to renominate the same three people to the court.

[Razrak]

I'm embarrassed to say I'm from Iowa after I read the judge retention results today. I have a suspicion the people who voted NO on the judges retention, were voting against same sex marriage instead of voting on the merits of the judges.

From the role of a judiciary:
"Some people mistakenly believe that judges make decisions based upon a personal sense of what they believe to be fair under the circumstances of a case. While a judge must always be fair in the sense of remaining impartial at all times, judicial decisions must be based upon the application of the law to the facts admitted into evidence. Sometimes the application of the law leads to outcomes that some people would characterize as "unfair." Nevertheless, judges are bound to follow the law."

[ambushed]

Amazing! Sure, we all knew that Bricker's consummate skills in "Full Contact Origami" easily enabled him to carefully fold the Iowa Constitution in such a clever way as to render the role of the state's third branch of government into pointless insignificance, but who could have imagined he could transcend materiality completely and succeed in twisting reality itself so as to render ignorance, bigotry and hate as calm, sober reasonableness?

Look upon the following staggeringly disingenuous apologetics for bigotry, ye Doper, and despair!

Originally Posted by Bricker

This [is] potentially much more than a single issue. In other words, judges are not legislators; presumably they didn't rule the way they did because they thought same-sex marriage was wise social policy. Right?

They must have ruled the way they did because they felt the state constitution should be interpreted using a particular method. If the voters felt that this method was not the correct one, that's not a "single issue" -- that goes to the heart of what a judge's role should be.

Originally Posted by Bricker

I'm contending they thought, "Judges shouldn't decide stuff like that."

Which is arguably true.

Originally Posted by Bricker

I think you mischaracterize "most of the tea party fucks." So far as I can tell, most simply favor compliance with immigration law - something my wife and I had no problem doing. I'm not aware of any major tea party candidate or group arguing a complete border shutdown.

Now, you talk about the tyranny of the fleeting majority, as if to suggest that same-sex marriage had a long and noble tradition in this country, and would still be comfortably in place, but for the fleeting desires of a hot-headed mob.

But you know that's not true. It's the crowd seeking same-sex marriage rights that is working a large change in society.

It's fascinating to me that you accuse me of some recent change, and cast your whole argument as something clearly required under the law, but for the recent wash of anti-gay fervor. you know that's not true. You're the one cloaking your argument in deceit...

Amazing!

Perhaps the most glaring flaw in Bricker's astonishingly naive apologetics lies with his wildly counterfactual premise that the voters who unseated all three Iowa Supreme Court justices seriously contemplated the proper role of the courts in state government!

Bricker, oh preternaturally naive Bricker! Do you live under a cup? Have you ventured outside of your hermit's cave at any time in the last 10 years? Have you never heard of Fox News? Rush Limbaugh? Glenn Beck? Never taken a peak at conservative web sites like FreeRepublic.com and Stormfront.org?

I submit that to write, as Bricker does above, that most in the Tea Parties "simply favor compliance with immigration law" is much too much like writing "Mussolini simply wanted the trains to run on time". Simplicity is often a terrible enemy of truth.

But this isn't about Bricker as an individual. My objection is to the extreme degree of political denialism all around us, in all kinds of media, which pretends that the average American voter -- even those on the Right -- made some kind of informed, rational decision before casting their ballot. Bricker's words here are merely just another example of such blithely delusional thinking.

Only those who willfully blind themselves to the reality of what truly occurs at the intersection of human nature and politics could possibly imagine that the Iowans who voted out their Supreme Court had engaged in some kind of informed, rational decision-making process. The drastic denialism inherent in such a view unnerves and worries me considerably. It puts me in mind of Chamberlain's "Peace for our time" speech. Nothing good can come from mistaking fear and hate and bigotry for reasoned analysis. Nothing.

In truth, we in the U.S. today are a nation dominated by a majority of highly gullible dupes who will believe just about anything as long as it's hateful, bigoted, or false, and, as the 2010 mid-terms demonstrated, those who most fervently believe those lies are the most enthusiastic voters. We ignore this reality at our peril.

As evidence, I cite:

Anti-Intellectualism in American Life

The Age of American Unreason

Idiot America: How Stupidity Became a Virtue in the Land of the Free

and: Just How Stupid Are We? Facing the Truth About the American Voter

Woe is us.

[JXJohns]

I've heard this "I'm embarrassed" meme for the last 48 hours and to be honest, it's getting old. You are embarrassed because people in this state think differently than you? Besides Polk, Johnson, and Linn counties, what exactly did you expect? Embarrassed because people made a decision, perhaps erroneously, that differed with your own? If there was ever a case study tailor made for whether campaigns and campaign ads work, it's this one.

The NO NO NO tour spent a fortune to get the word out that now was the chance to get back at the man for not allowing people to vote on SSM. The rational side, including those who are embarrassed today, did little to nothing other than wring their hands, post on message boards, and wag fingers at those even thinking about not retaining judges. Has the judiciary been politicized? I'm not sure about that yet. After all, the judge who made the initial decision in support of SSM was retained with no problems.

I looked outside this morning and the sun is still shining, SSM is still legal with no serious threat in sight. How many other states allow SSM, and you are embarrassed of ours?

[JXJohns]

Originally Posted by RadicalPi

I'm so glad I'm not talking myself anymore in this thread. ...

I wonder if it's possible to renominate the same three people to the court.

They cannot be appointed for two years after being unseated, per the Iowa Constitution. FYI

[Bricker]

Originally Posted by Zakalwe

But that's not how it works and you damn well know it. Suppose the Florida Legislature passes a law that left-handed people can't vote. After all, handedness is not a protected class. Should left-handed people just give up their vote until they can convince the Legislature that they screwed up? Or should they go to a court?

Here's the difference: again you're touting a dramatic change, and the aggrieved people in your hypothetical are hurt by the change. They would ask the court not to make an unheard of change for their benefit, but to restore the previous status quo.

So to answer your particular example: the left-handers should go to court and ask the court to review that law as violative of the Equal Protection Clause, and evaluate the law under a rational basis standard.

But when they do that, they are not asking the court to create a new state of affair. They are asking the court to return the previous, long-standing state of affairs.

In the Iowa case, the court was asked to do something new. It's not ridiculous to say that such changes should come from the legislature, not the courts.

[Bricker]

Originally Posted by Razrak

I'm embarrassed to say I'm from Iowa after I read the judge retention results today. I have a suspicion the people who voted NO on the judges retention, were voting against same sex marriage instead of voting on the merits of the judges.

Quite possible.

I'm pointing out, though, that a person could well have voted against the retention of those judges based on his view of their merits. In other words, a reasonable person could have concluded that Iowa's equal protection clause should be read as coextensive with the federal constitution's, and since Iowa is in the Eighth Circuit, that Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) controls ("We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.")

Or a less informed, but still reasonable person, could say, "This is the kind of question that legislatures and not judges should decide."

[Enderw24]

Originally Posted by Bricker

Here's the difference: again you're touting a dramatic change, and the aggrieved people in your hypothetical are hurt by the change. They would ask the court not to make an unheard of change for their benefit, but to restore the previous status quo.

So to answer your particular example: the left-handers should go to court and ask the court to review that law as violative of the Equal Protection Clause, and evaluate the law under a rational basis standard.

But when they do that, they are not asking the court to create a new state of affair. They are asking the court to return the previous, long-standing state of affairs.

In the Iowa case, the court was asked to do something new. It's not ridiculous to say that such changes should come from the legislature, not the courts.

But you and I both know that the role of the judiciary is to interpret law and that's exactly what happened in this case. The Supreme Court served the exact purpose for which it was designed.

For as much as people wish in Iowa wish to rail against SSM, they are 100% wrong if they believe
1) this ruling was "judicial activism" where the Supreme Court justices created law. We both know they didn't.
2) The Supreme Court of Iowa had no right to either hear or rule on this case. We both know they did.

And your argument about how this case is different because it gives people rights they didn't previously had and that somehow makes it special doesn't pass the laugh test. Do you think Blacks had something better to fall back on when the Court struck down the Jim Crow laws as unconstitutional? No. It was exactly like this case above. Lord help us if the Supreme Court of the US followed the Missouri Plan or Earl Warren would have served just 16 months on the bench rather than 16 years. (Hey, on the plus side, Miranda would have swung 5-4 the other way and we'd never have to worry about the cascade of rights that criminal suspects have gotten that stem from that opinion).

[Bricker]

Originally Posted by ambushed

Amazing! Sure, we all knew that Bricker's consummate skills in "Full Contact Origami" easily enabled him to carefully fold the Iowa Constitution in such a clever way as to render the role of the state's third branch of government into pointless insignificance, but who could have imagined he could transcend materiality completely and succeed in twisting reality itself so as to render ignorance, bigotry and hate as calm, sober reasonableness?

So it seems we have these options, unless there's another I'm missing:

1. You argue that no reasonable person could have said, "Iowa's equal protection clause should be read as coextensive with the federal constitution's, and Citizens for Equal Protection v. Bruning controls, so I don't want to retain those judges."

2. You argue that no reasonable person could have said, "I don't know about all that law mumbo-jumbo, but I do know that for decisions like this, I want them to come from legislature, not judges, so I don't want to retain those judges."

3. You argue that a reasonable person COULD have said #1, or #2, but that this particular bunch of Iowa voters (or all voters) did not; en masse they were motivated solely by bigotry.

Is there another option? Or does one of those capture the essence of your argument?

and: Just How Stupid Are We? Facing the Truth About the American Voter[/indent]

Wow. So the solution, it seems, is to register even more voters, concentrating especially on poor, inner-city voters, because those are the sorts of voters that usually have the best understanding of the issues. Or.. no?

[Diogenes the Cynic]

Yes, the voters were motovated solely by bigotry. Let's not sugarcoat it. It is what it is. It's a great example of why the judiciary should not be subject to elections. Mobs don't make good judges.

[Bricker]

Originally Posted by Enderw24

But you and I both know that the role of the judiciary is to interpret law and that's exactly what happened in this case. The Supreme Court served the exact purpose for which it was designed.

For as much as people wish in Iowa wish to rail against SSM, they are 100% wrong if they believe
1) this ruling was "judicial activism" where the Supreme Court justices created law. We both know they didn't.

Certainly they created law. I don't know that I'd call it activism, but they certainly created new substantive law.

2) The Supreme Court of Iowa had no right to either hear or rule on this case. We both know they did.

Correct.

And your argument about how this case is different because it gives people rights they didn't previously had and that somehow makes it special doesn't pass the laugh test. Do you think Blacks had something better to fall back on when the Court struck down the Jim Crow laws as unconstitutional? No. It was exactly like this case above. Lord help us if the Supreme Court of the US followed the Missouri Plan or Earl Warren would have served just 16 months on the bench rather than 16 years. (Hey, on the plus side, Miranda would have swung 5-4 the other way and we'd never have to worry about the cascade of rights that criminal suspects have gotten that stem from that opinion).

And you'd be singing this same tune, I assume, if the Supreme Court finds a Fourteenth Amendment right to life in an unborn child, and bans states from conducting abortions? After all, they'd have a right to hear and rule on this case, and so you think blacks had something better to fall back on when the Court struck down the Jim Crow laws as unconstitutional?

No?

The Iowa courts had every right to determine what the Iowa constitution meant. The judges involved chose to expand the state equal protection clause in a new way. That's what courts do. It's not at all unreasonable.

But the Iowa voters also had every right to refuse to retain them. The voters chose to reject those judges, and that decision, too, is not per se unreasonable.

Now, I'd grant that for every voter who said, in his mind, "I'm voting 'no' because they let gays marry," THAT is an unreasonable voter.

But I also contend that every voter who said, "I'm voting 'no' because decisions of this magnitude should come from the legislature," is NOT unreasonable.

And I certainly contend that every voter that said, "Iowa's equal protection clause should be read as coextensive with the federal constitution's, and Citizens for Equal Protection v. Bruning controls," was not unreasonable.

[Diogenes the Cynic]

They did not create law, they enforced it.

[Enderw24]

If we both agree that the Supreme Court had every right to hear and rule on this case, but your contention is that these types of decisions should be left to the Legislature...I'm not sure how you can rectify those two statements. What would you have the Court do? Issue an opinion but put a footnote on the decision that says "For informational purposes only. Not to be used in the implementation of legal analysis."?

I do believe it's *possible* that some members of the public voted "no" on the judicial retention based upon the contention that decisions of this nature are best left to the Legislature and not because they had ill-will in their hearts for homosexuals. But I don't think it matters. If the court had the right to hear and rule on the case then the court had the right to hear and rule on the case. The court was acting properly and the Justices shouldn't be punished for performing their defined role.
Besides which, that entire last paragraph is pretty much irrelevant. Try all you want, I have Occam's Razor on my side and it says the most likely conclusion is that the majority of voters who voted no did so because they're bigots and hate homosexuals, not because of any quasi-legal analysis you might cook up.

[Bricker]

Originally Posted by Enderw24

If we both agree that the Supreme Court had every right to hear and rule on this case, but your contention is that these types of decisions should be left to the Legislature...I'm not sure how you can rectify those two statements. What would you have the Court do? Issue an opinion but put a footnote on the decision that says "For informational purposes only. Not to be used in the implementation of legal analysis."?

I do believe it's *possible* that some members of the public voted "no" on the judicial retention based upon the contention that decisions of this nature are best left to the Legislature and not because they had ill-will in their hearts for homosexuals. But I don't think it matters. If the court had the right to hear and rule on the case then the court had the right to hear and rule on the case. The court was acting properly and the Justices shouldn't be punished for performing their defined role.

Not so. "Has the right to hear and rule on it," does not translate to, "So therefore all voters must accept their decision and give it no weight in their decision to retain the judges."

An unsophisticated voter can say to himself, "I don't know about the law, but I know that this is a big change in this state, and big changes should come from the legislature." This is a position that intuitively makes sense. If judges are supposed to interpret the law as written, and the written law hasn't changed, how could it possibly be true that suddenly, 164 years after Iowa's constitution was written, it becomes true that it requires same-sex marriage? That's not in-depth legal analysis, but neither is it bigotry.

[Bricker]

Originally Posted by Diogenes the Cynic

They did not create law, they enforced it.

So Iowa's constitution was adopted in 1846. At that time, according to you, same-sex marriage was mandated in Iowa.

[Diogenes the Cynic]

Yep. Every bit as much as the US Constitution mandates the free production and distribution of scat porn. An unintended consequence of the text, but an unavoidable one.

[Bricker]

Originally Posted by Bricker

So Iowa's constitution was adopted in 1846. At that time, according to you, same-sex marriage was mandated in Iowa.

Originally Posted by Diogenes the Cynic

Yep. Every bit as much as the US Constitution mandates the free production and distribution of scat porn. An unintended consequence of the text, but an unavoidable one.

OK.

So does the Fourth Amendment (text written in 1789) prevent the federal or state governments from placing a battery-powered GPS beacon on your car's inside bumper and tracking your movements for a month?

[Diogenes the Cynic]

No. I said in those discussions that I didn't think that violated the 4th Amendment. I think your public movements in a car are free game.

[Bricker]

Originally Posted by Diogenes the Cynic

No. I said in those discussions that I didn't think that violated the 4th Amendment. I think your public movements in a car are free game.

I'm not so much interested in what you think, but what it says. After all, you will die someday, and the rest of the country must continue to figure out what the Constitution says, so we can hardly rely on "This is what Diogenes thinks" as the rule, can we?

Now, as it happens the DC Circuit disagrees with you. They say that the Fourth Amendment DOES prevent the government from using GPS in that way. The Supreme Court has not spoken on the direct issue of GPS use.

So... does the Fourth Amendment say something different in DC than it does in the rest of the country? The DC Circuit -- did they create law or enforce it?

How about the Ninth Circuit? They decided the issue precisely the other way. Are they creating law or enforcing it?

[Diogenes the Cynic]

Originally Posted by Bricker

I'm not so much interested in what you think, but what it says.

No, it doesn't say that.

Now, as it happens the DC Circuit disagrees with you. They say that the Fourth Amendment DOES prevent the government from using GPS in that way. The Supreme Court has not spoken on the direct issue of GPS use.

So... does the Fourth Amendment say something different in DC than it does in the rest of the country? The DC Circuit -- did they create law or enforce it?

How about the Ninth Circuit? They decided the issue precisely the other way. Are they creating law or enforcing it?

They're misinterpreting it.

[Bricker]

Originally Posted by Diogenes the Cynic

No, it doesn't say that.

They're misinterpreting it.

Who is misinterpreting it? DC, or the Ninth Circuit?

[Diogenes the Cynic]

DC.

[Fenris]

Originally Posted by Diogenes the Cynic

They did not create law, they enforced it.

No they didn't. You're wrong.

[Enderw24]

Originally Posted by Bricker

OK.

So does the Fourth Amendment (text written in 1789) prevent the federal or state governments from placing a battery-powered GPS beacon on your car's inside bumper and tracking your movements for a month?

What I, personally, believe? Yes it does.

But as you note, the Supreme Court has yet to rule of the issue. If it does, regardless of the decision, I wouldn't rend my garments crying "Why? How? The Constitution is OLD! How could we have a Constitutional mandate of GPS from before it was invented and surely these activist judges have no right to mandate what should be the role of Congress! Clearly the whole system is out of order!"

[Fenris]

Originally Posted by Diogenes the Cynic

No, it doesn't say that.

Yes it does

They're misinterpreting it.

No they're not.

[Bricker]

Originally Posted by Bricker

Who is misinterpreting it? DC, or the Ninth Circuit?

Originally Posted by Diogenes the Cynic

DC.

And I assume your answer will be the same if the Supreme Court affirms DC and overturns the Ninth, yes?

I mean, how could it be otherwise? According to you, since 1789 the Fourth Amendment has said that the government could put GPS devices in cars without a warrant, so if the Supreme Court rules differently, they are misinterpreting it - correct?

[Diogenes the Cynic]

Originally Posted by Fenris

No they didn't. You're wrong.

You're welcome to your opinion. I'm sure you're very happy with those election results then.

[Diogenes the Cynic]

Originally Posted by Bricker

And I assume your answer will be the same if the Supreme Court affirms DC and overturns the Ninth, yes?

It won't.

I mean, how could it be otherwise? According to you, since 1789 the Fourth Amendment has said that the government could put GPS devices in cars without a warrant, so if the Supreme Court rules differently, they are misinterpreting it - correct?

Correct. That's why they won't.

[Bricker]

Originally Posted by Enderw24

What I, personally, believe? Yes it does.

But as you note, the Supreme Court has yet to rule of the issue. If it does, regardless of the decision, I wouldn't rend my garments crying "Why? How? The Constitution is OLD! How could we have a Constitutional mandate of GPS from before it was invented and surely these activist judges have no right to mandate what should be the role of Congress! Clearly the whole system is out of order!"

Sure. But you might look at the analytical method they used to reach their decision, and decide for yourself if it was a valid one, and resolve to appoint other judges who also use that analytical method... and resolve to NOT appoint judges that used other analytical methods.... right?

[Bricker]

Originally Posted by Bricker

And I assume your answer will be the same if the Supreme Court affirms DC and overturns the Ninth, yes?

Originally Posted by Diogenes the Cynic

It won't.

Originally Posted by Bricker

I mean, how could it be otherwise? According to you, since 1789 the Fourth Amendment has said that the government could put GPS devices in cars without a warrant, so if the Supreme Court rules differently, they are misinterpreting it - correct?

Originally Posted by Diogenes the Cynic

Correct. That's why they won't.

Whew. Well, that's a load off my mind, especially since they're likely to grant cert because of the conflict in circuits.

But we cannot, I assume, read into what you've written here the idea that the Supreme Court never misinterprets the Constitution... right?

I mean, they said in 1986 in Bowers v. Hardwick that the Constitution (text written in 1867) DID NOT protect the right of two adults to engage in consensual, non-commercial sodomy. That was a misinterpretation, because in 2003 they said in Lawrence v. Texas that the Constitution (text still written in 1867) DID protect the right of two adults to engage in consensual, non-commercial sodomy. Or was Lawrence the misinterpretation?

So how are we to tell if, for any given decision, the Supreme Court misinterpreted the Constitution?

[Diogenes the Cynic]

Yes, the Supreme Court can misinterpret law ("ceremonial deism"), I just don't think it will in this case.

Just because I said that one court interpreted a law correctly doesn't mean that I think all courts always do. That court in Iowa did not create law.

[Enderw24]

Originally Posted by Bricker

Sure. But you might look at the analytical method they used to reach their decision, and decide for yourself if it was a valid one, and resolve to appoint other judges who also use that analytical method... and resolve to NOT appoint judges that used other analytical methods.... right?

Well, assuming Supreme Court judges could be voted out.

But the point you're trying to refute isn't one I've been making. My point was that
1) You can vote to not retain a judge because he doesn't understand the law, or fails to follow proper criminal or civil procedure, or has a huge backlog of cases due directly to his incompetance at handling them, or any of a number of other rationales that go directly to his competance at doing the job to which he was appointed. But to do so because you don't happen to like an opinion that he was fully authorized to make? Well, I don't really accept that as qualified objection. Because to do so, you really start to politicize the judicial branch and I'd like my judges to make decisions based upon the law, not popular opinion.

And

2) Occam's Razor. Dude, Occam's Razor. I'm sure there are some thoughtful, analytical, and rational voters out there. Never once did I say or believe otherwise. But you just cannot escape the fact that the most likely reason these three judges were voted out was because the voters were bigots and hate Teh Gay.

[ambushed]

Hate and bigotry have no better ally here than Bricker, who keeps essentially arguing that the Iowa Supreme Court had no right, or should not have the right, to reach a decision based on the straightforward reading of the state's constitution if that decision changes the status quo in any significant way. What an obscene and utterly wrong-headed legal rationalization for willful injustice!

It is unequivocally evil and flagrantly repudiative of the founders' manifest will to allow people to vote on granting or removing the civil rights of any group of American citizens! It is as depraved and repulsive a crime against America and American ideals as any I can imagine, yet Bricker and JXJohns openly endorse precisely that!

Consider the disingenuous con job Bricker delivers in his response to Zakalwe's hypothetical regarding a vote denying left-handed people the right to vote:

Originally Posted by Bricker

... [Y]ou're touting a dramatic change, and the aggrieved people in your hypothetical are hurt by the change. They would ask the court not to make an unheard of change for their benefit, but to restore the previous status quo.

So to answer your particular example: the left-handers should go to court and ask the court to review that law as violative of the Equal Protection Clause, and evaluate the law under a rational basis standard.

But when they do that, they are not asking the court to create a new state of affair. They are asking the court to return the previous, long-standing state of affairs.

In the Iowa case, the court was asked to do something new. It's not ridiculous to say that such changes should come from the legislature, not the courts.

Bricker's "reasoning" is, of course, quite offensive and off-base. For the analogy to be applicable, the "previous, long-standing state of affairs" would have to be one in which only right-handed people could vote, and it is only to that state of affairs that Bricker would grant the court the right to decide.

Note also the reference there to the "rational basis standard" of reviewing Equal Protection cases. Bricker and other defenders of bigotry prefer that standard over heightened standards because it allows bigots to prevail far more easily. This is because under that standard, if the court can imagine any marginally "rational" hypothetical justification for the legislature's decision to discriminate against a given group -- even if the legislature never even imagined it -- the discriminatory statute prevails.

Bricker and JXJohns and others who agree with them are being manifestly contemptuous of our ideals and system of government. No matter how much they dance around it, in the end they are flagrantly perverting the role of the third branch in the United States into passivity and impotence by arguing that the courts have no right to rule on the constitutionality of legislation if the decision might have non-trivial real-world consequences, such as if it invalidates a bigoted law.

Be not deceived: Those who argue thus do so because they know perfectly well that voters are easily manipulated into voting for evil and hate and bigotry, whereas judges are not quite so easily moved. JXJohns made this point quite openly when he wrote:

Originally Posted by JXJohns

... If there was ever a case study tailor made for whether campaigns and campaign ads work, it's this one.

[Bricker]

Originally Posted by Diogenes the Cynic

Yes, the Supreme Court can misinterpret law ("ceremonial deism"), I just don't think it will in this case.

Just because I said that one court interpreted a law correctly doesn't mean that I think all courts always do. That court in Iowa did not create law.

OK.

So how can we determine this difference? How can we, the public, know that the text of the Constitution says, and has always said, XYZ?

[Diogenes the Cynic]

By reading it.