Most elementary-school students are taught that the American system of government has three branches: legislative, executive and judicial. These branches are co-equal and each serves as a check and balance to the others’ power.
Some of our state legislators may have been playing hooky when that came up in social studies class. Members of the GOP majority have focused a considerable amount of attention in the opening weeks of the legislative session on trying to expand their control over the judicial branch, and particularly the state’s “unelected judges.”
Republican lawmakers have become increasingly frustrated by the fact that these “unelected judges” have struck down laws found to be unconstitutional and in violation of Iowans’ civil rights. Unsurprisingly, much of their angst is centered on abortion rights.
“Most Iowans instinctively know that there’s a baby growing inside of a womb but now a handful of (un)elected judges have created a precedent in Iowa that could lead to making it legal to kill a baby up until birth and make Iowans pay for it,” Rep. Steven Holt, R-Denison, said during a recent subcommittee debate.
Scare tactics aside about late-term abortions and taxpayer funding, “most Iowans” do not believe abortion should be illegal in all or most cases, according to a Des Moines Register Iowa Poll taken last year. In fact, Iowans are split on the matter, with 48% believing abortion should be legal in most or all cases and 45% believing it should be illegal in most or all cases.
For the past few years, Republican lawmakers’ efforts to tie judges’ hands have been aimed at trying to change the state constitution. Last week, Iowa House committees continued that effort by advancing proposed amendments dealing with abortion and gun rights. The proposals aim to stack the deck in favor of abortion restrictions and against gun regulations that end up in court.
The merits of these proposals aside, amending the constitution is one of the legitimate ways that the legislative branch, with the consent of the people, can place a check on the judiciary. By design, it’s a slow and cumbersome process that requires two consecutive general assemblies to approve a resolution and a positive vote of the electorate.
Rep. Sandy Salmon, R-Janesville, has apparently run out of patience. She’s introduced House File 109, which would allow lawmakers to put certain Supreme Court rulings on hold for a year. They could call justices before the Legislature to a public hearing “to discuss and debate the justification for the decisions.” After the hearing, a justice could change his or her vote, potentially altering the ruling.
So under Salmon’s proposal, Iowans essentially would be given the opportunity to pressure Supreme Court justices into changing their opinions, which are supposed to be based on their reading of the law and not public opinion.
And if that fails, Salmon’s proposal would allow a two-thirds supermajority of the Legislature to overturn Supreme Court decisions for reasons “not to be limited by court precedent.”
So Salmon wants lawmakers to be able to pass unconstitutional laws and then nullify any judicial decisions they don’t like. How’s that for a balance of power?
Iowa judges are, as Republican lawmakers like to say, “unelected,” which is another way to say “independent” or “impartial.” That is different from some other states where judges, like lawmakers, can solicit support and donations from corporations and special interests and then decide in their favor. In many of those states, justice is essentially for sale.
In Iowa, judges are appointed by the governor from nominees chosen by a commission made up of governors’ appointees and members of the bar (lawyers and judges). The GOP-controlled Legislature has already changed the makeup of this commission to tip the balance in favor of the Republican governor’s appointees.
Iowans can exercise another check on the judicial branch by periodically voting on whether to retain state judges. In 2010, after a campaign bankrolled by conservative special interests, voters booted three of the Supreme Court justices who voted to overturn a ban on same-sex marriage. And yet, the state’s elected officials have not been willing or able to use their legitimate legislative powers to change that outcome.
If lawmakers were to approve Salmon’s obviously unconstitutional bill and the governor were to sign it, it still wouldn’t become law because it is subject to judicial review. The founders of our American system of government were wise, indeed.
If legislators want to avoid having their laws struck down by judges, here’s a simple idea: Stop passing unconstitutional laws that infringe on Iowans’ civil rights. That will take care of it.