In a revealing conversation with the National Constitution Center’s Jeffrey Rosen, three judges made an emphatic case for the value and necessity of independent courts.
Former Chief Justice Marsha Ternus of the Iowa Supreme Court and Justice Barbara Pariente of the Florida Supreme Court recounted their respective reelection contests in which a well-financed opposition assailed them for unpopular decisions.
Ternus, who was appointed to Iowa’s highest court in 1993 and named chief justice in 2006, led a unanimous court that ruled the state’s Defense of Marriage Act unconstitutional in 2009.
In the months leading up to Election Day, the trio faced an onslaught of public opposition spearheaded by the American Family Association-funded group Iowa for Freedom. Indeed, spending in 2010 retention elections nationwide reached $5 million—double the total spent in the previous decade.
“It clearly sends a message to judges that, in the future, they should hesitate to issue an opinion that may be correct under the law … and yet is unpopular,” Ternus said of her situation. “They’re telling those judges to check the opinion polls on the issue and follow those rather than following the law.”
“That’s a very dangerous message to be sending,” she added.
Pariente faced her own reelection in 2012 alongside Justices Peggy Quince and R. Fred Lewis. With a career on the court beginning in 1997—including a stint as chief justice from 2004 to 2006—she played a role in several controversial cases, including Gore v. Harris (2000), ordering a statewide recount in the 2000 presidential election, and Bush v. Holmes (2006), ruling school vouchers unconstitutional.
She and her colleagues drew the ire of the state Republican Party and the Koch-funded group Americans for Prosperity, however, for ordering a retrial for convicted murderer Joe Nixon and for throwing out a proposed constitutional amendment that would have allowed Floridians to opt out of the Affordable Care Act’s mandate for obtaining health insurance.
The trio survived the election, but not without a fight.
“Citizens, properly informed, did not want to transform the courts into a ‘power grab’ for one governor or one side or the other,” she said. “They recognized separation of powers, checks and balances—everything the National Constitution Center wants to emphasize.”
Judge Anna Blackburne-Rigsby of the U.S. Court of Appeals for the D.C. Circuit, who currently serves as president of the National Association of Women Judges, offered a broader perspective on the difficult landscape faced by judges across the country.
“A lot of people just don’t know a lot about the judiciary and what judges do every day—until one of our loved ones, family members, [or] friends has to go into a courthouse. That is part of the problem,” she explained. “What judges and lawyers in the community need to do more is talk like this.”
“Judicial independence … is not about the judge,” she insisted. “It is about the community. It is about the people. It is about our democracy.”
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