David Fowler President

April 7, 2009

Last week, in the heartland of America, a unanimous Iowa Supreme Court ruled that the legislatively enacted Defense of Marriage Statute in that state violated the Iowa constitution. What can Tennesseans learn from this that they need to understand now, rather than later?

One might think that the decision in Iowa is irrelevant to Tennessee since 81 percent of Tennessee voters in 2006 adopted an amendment to our state constitution defining marriage as between one man and one woman. But it is relevant because it points out the importance of an issue that our own legislature is now debating, namely, how judges should come to serve on our state Supreme Court.

Liberal Judges in a Conservative State

Notwithstanding the generally conservative citizenry of Iowa, Iowa’s Supreme Court rendered a very liberal opinion, one that reflects a profound misunderstanding of the nature of marriage, equal protection, and the role of the judiciary vis-à-vis the legislature. And shockingly, not one justice dissented; the opinion was unanimous.

The lesson for us in Tennessee is drawn from the fact that Iowa’s Supreme Court justices get to serve on the court and continue to serve on the basis of an appointment and retention referendum system very much like the one we currently have in Tennessee.

“So?” you might say, “What’s the point?” Well, the point is that under this kind of judicial system, there is little to no judicial accountability. Judges who are insulated from some real measure of accountability are more likely to ignore judicial restraint, engage in judicial activism, and flaunt the will of the people. Lord Acton had it correct: “Power corrupts and absolute power corrupts absolutely.” This truth applies to judges as equally as it does the legislator or the king.

Elected Means Elected—What’s So Hard to Understand?

In the coming days or weeks, our legislature will have the opportunity to decide just how accountable our Tennessee Supreme Court justices will be. A provision in our state constitution, dating back to 1853, provides that the “judges of the Supreme Court shall be elected by the qualified voters of the state.”

Sounds straightforward enough. But those sitting on our state Supreme Court have applied a liberal, living constitution approach, to the term “elect,” saying that an appointment by the Governor followed by a yes-no retention referendum is an “election.”

Key to this process is a Judicial Selection and Evaluation process. Those commissions are set to “die” come June 30, 2009, unless the legislature decides to renew them. If the commissions die, then Supreme Court justices (and intermediate appellate court justices) would be subject to a regular election process. What is being debated is whether those commissions should “live” on or “die.”

An Unchecked Judiciary: Not What the Framers Intended

No person who professes to hold to original intent or strict construction as a philosophy regarding constitutional construction/interpretation can, with a straight face, say that in 1853 our Founders and the people who ratified our constitution thought that the word “elect” meant something like the current appointment and retention process. This kind of election process was not “invented” until around the 1900s.

In our opinion, those who want to affirm the current system should give up any pretension to being against “judicial activism” or being for “strict construction” or “original intent” when it comes to constitutional interpretation. To vote to keep the current appointment and retention system and then turn around and decry judicial activism in the context of court-created abortion rights is terribly inconsistent.

To infuse “appointment and retention” into the word “elect” is to embrace the “living constitution” approach to judicial construction of a constitution or, in the vernacular, an approach that supports judicial activism. Such an approach “kills” the constitution as an anchor for our governance because a majority of the five people on our Supreme Court have the power to re-write it to suit their understanding of what is needed, rendering the provisions allowing for amendment by the people meaningless and unnecessary.

It Takes 14 Years to Fix a Bad Court Ruling

If all this sound theoretical and philosophical, then let’s put the implications into real world practicality. Here is the problem created by the lack of judicial accountability.

The decision by the Iowa Supreme Court injecting gay marriage into their state constitution cannot be fixed for at least four years since it will take that long for the constitutional amendment process to be completed. And when our state Supreme Court makes a “mistake” it also takes at least four years to fix their mistake. In fact, it will wind up taking, at a minimum, 14 years to “fix” our court’s mistake in making Tennessee’s constitution the most protective of abortion of any state in the Union! That’s right, the Court rendered its infamous pro-abortion ruling in 2000, and no constitutional amendment can get on the ballot at this point until 2014!

Let’s hope our legislators learn a lesson from the Heartland of America and let the state constitution live by letting the Judicial Selection and Evaluation Commission die, at least when it comes to our state Supreme Court judges.