One of the more disappointing results from this week's elections — and there are many to choose from — comes from Iowa, where three justices of the state's Supreme Court lost their seats. The three had no opposition but were up for merit retention, the same system Florida employs for appellate judges. The justices were targeted for defeat by a well-funded national campaign of social conservatives after the court issued a unanimous ruling legalizing same-sex marriage. The ouster sent a strong message to judges around the country about the challenge to an independent judiciary.
Regardless of one's personal opinion about the Iowa Supreme Court decision granting same-sex couples the same rights to civil marriage as opposite-sex couples, judges should not factor in public sentiment before making a controversial ruling. They represent the one branch of government designed to be insulated from the whims of the majority.
Think of the courageous court decisions on desegregation and civil rights, where public opinion took time to catch up. There is a reason so many politically explosive advances came from the courts rather than legislatures. Federal judges receive lifetime appointments to insulate them from a popular backlash. Merit retention was supposed to be a middle ground between a lifetime appointment and a contested election, but the Iowa experience is a reminder that the protection is not complete.
Florida has occasionally experienced organized opposition to state Supreme Court justices, but no appellate judges have been removed through merit retention since the system was established in the 1970s. The last effort that had any steam came against former Chief Justice Rosemary Barkett in 1992 and former Chief Justice Leander Shaw in 1990. That was due to their support of a 1989 decision striking down a state law that forced a teen seeking an abortion to first obtain parental consent or seek permission of a judge to bypass consent. The ruling, which relied on the state Constitution's right to privacy, infuriated the anti-abortion movement.
There are legitimate reasons for voters to remove a judge. For example, Paul Hawkes, chief judge of the Florida's 1st District Court of Appeal, violated the public trust in the way he got a palatial new courthouse built in Tallahassee. Hawkes deserved to lose a merit retention vote on Tuesday but survived. The Iowa justices who lost their jobs simply interpreted their state constitution as granting an unpopular minority group equality under the law. That should not be enough to earn a pink slip.