University of Denver

Anti-Retention Campaign Movement Threatens Judicial Independence

IAALS Intern

What began two years ago, with a group's successful ousting of three Iowa Supreme Court Justices who ruled in favor of allowing same-sex marriage, has escalated into a movement to rid state courts of justices who have made undesirable rulings. Instead of pushing to remove justices for misconduct or incompetence, groups are doing so because of disagreements over particular decisions. Justices Ruth V. McGregor and Randall T. Shepard emphasize that these actions put fair and independent judiciaries at risk by threatening to puncture the protective shield that keeps politics outside the courthouse.

In Iowa, voters are campaigning to remove Justice David Wiggins for his participation in the Iowa Supreme Court same-sex marriage decision. Justice Wiggins, like his ousted colleagues, has opted not to campaign for his retention. Also, in Florida, voters are fighting for the removal of three of the seven state supreme court justices. Conservative-leaning groups have targeted the Democratic appointees for their various rulings over the years, such as a decision to strike a constitutional amendment from the ballot that would have exempted the state from following federal health care mandates. To fight this campaign, the Florida justices have been forced to raise money and launch their own retention campaigns.

The anti-retention campaign movement has politicized the traditionally non-political retention elections. Additionally, if the groups driving the campaigns continue to be successful in their ousting efforts, they may consequently be introducing partisanship into what most believe should be nonpartisan judicial systems. Justices McGregor and Shepard warn that, "[i]f judges cannot make hard calls based on the law, without looking over their shoulder for threats of retaliation, it will become harder for our justice system to fulfill its traditional responsibility to uphold the Constitution and protect Americans' rights."