Faith in the judiciary

A healthy dose of faith is required to make a democracy work -- not religious faith, but a belief in that society's institutions. We may laugh cynically about "the consent of the governed," but don't kid yourself: the only reason the U.S. functions as a nation is that most of us are still psychologically invested enough in its laws and customs to follow them without significant physical compulsion.

One of this country's core institutions, the judiciary, requires exceptional faith from us. The majority of judges are unelected, so they aren't directly accountable to the citizenry: we can only elect executives (mayors, governors, Presidents) who in turn appoint those judges. And whether or not a given judge is elected directly, most of us don't have the expertise to know whether s/he is any good at the job. We hope and assume that's so, unless we hear otherwise in the press.

So I am disturbed by the electoral removal of three Iowa Supreme Court justices. According to the New York Times, the recall election was motivated by popular anger against the court's unanimous decision "to strike down a law defining marriage as between a man and a woman, making the state the first in the Midwest to permit same-sex marriage." This popular anger was fueled by a lot of out-of-state money from conservative groups like the National Organization for Marriage and the American Family Association.

Popular anger is almost never a good indicator of what is legally right. Here's how the recall election was justified:

“I think it will send a message across the country that the power resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate for governor who led the campaign. “It’s we the people, not we the courts.”

This is an ignorant misreading of why the judiciary exists.

Judges are not supposed to be susceptible to popular sentiment. Their job is to interpret the law, not to respond to lynch mobs. That's why the majority of them are unelected. They have to feel their job security (if not their physical security) doesn't depend on how well their decisions go down with the public.

If you think I'm misconstruing the judiciary's role in our government, ask yourself why it exists. Its purpose is to decide whether the legislature and executive are acting within the bounds of the law and the (state or federal) constitution. If that could be done purely by popular referenda, i.e., elections, why would we need a judiciary at all, considering that we elect our legislatures and executives? No, the whole point is that we need people who are dedicated to upholding the laws of the land no matter what popular opinion is.

The recall of the Iowa justices, motivated by what everyone admits was simple dislike (well, hatred) of one of their decisions, points at a total loss of faith in the judiciary by a number of people.

That's not a victory for the people. That's a sign that our system is breaking down.

Ironically, it's the so-called "conservatives," those who claim to be so passionate about preserving our bedrock ideals, who are so eagerly undermining the institutions intended to preserve those ideals.