The politicization of justice was the theme of a lecture by former chief justice of the Iowa Supreme Court Marsha Ternus Feb. 28 at Elmhurst College.
The first woman to preside over the Iowa Supreme Court, Ternus and two of her colleagues lost their seats in the 2010 retention election months after they and the four other Supreme Court justices ruled unanimously to strike down a state statute banning same-sex marriage.
Ternus and the two other justices (David Baker and Michael Streit) who also lost their seats on the Iowa Supreme Court received the 2012 John F. Kennedy Profile in Courage award. They were honored by the Kennedy Presidential Library for political courage and judicial independence.
In 1993, Ternus was appointed to the court and in 2006 she was chosen by her peers to serve as chief justice. Court oversight over child welfare cases and expanding access to the courts were her top priorities as chief justice. She is a member of a number of judicial committees and a former member of the Board of Governors of the Iowa State Bar Association. Currently, Ternus practices law at her own firm in Des Moines. She focuses on appellate case consulting, litigation consulting and arbitration.
Following words of welcome by S. Alan Ray, president of Elmhurst College, and an introduction by Teri Walker, associate professor of political science, Ternus told the approximately 150 gathered for the event that she couldn't think "of better place to talk about the politicization of justice than Elmhurst College."
Ternus remarked that she did research about the college and discovered its mission includes critical and creative inquiry, rigorous debate, intellectual integrity in all endeavors and its core values include a commitment to social justice, mutual respect of all persons and fairness and integrity in everything that the college does. "Justice in America faces serious challenges that requires thoughtful conversation. … I commend Elmhurst College for fostering these values," she said.
Ternus noted that Americans have always been proud of the rule of law that exists in the courts. She spoke about how Americans rely on an independent and non-political court system that will give them fair hearings and impartial rulings. "In recent years politicians and special interest groups have attempted to influence court decisions through public rhetoric and intimidation, and as you have heard I have personally experienced the retaliation of voters when I participated in the decision that upheld Iowan's constitutional rights to same-sex marriage," said Ternus. There are efforts to undermine the judiciary across the country, she explained.
In civics, the rule of law is defined as judicial independence free of outside influences, she said, noting that, other than Switzerland, the U.S. is the only country that has judicial elections. Then Ternus talked about the history of the U.S. judiciary going back to colonial days, the evolution of the electoral process and the shift back to appointing judges followed by retention elections for those justices.
During Ternus' retention election, she explained that campaign spending was significantly higher than in previous races. A Mississippi group affiliated with the American Family Association was the main entity fighting to the justices removed, Ternus noted. In their campaign, the group used language similar to other groups opposing same-sex marriage, however, they never criticized the ruling that Ternus and her colleagues made to legalize same-sex marriage. They argued that the Iowa Supreme court didn't have the power or authority to review the state's Defense of Marriage Act statute.
"Judicial review of the constitutionality statute is one of the most important functions of the courts in our democracy," said Ternus. This judicial review was settled, Ternus explained, more than 200 years ago in the Supreme Court case Marbury v. Madison. Although Ternus and her two colleagues lost their seats in 2010, Ternus noted that their decision has stood and same-sex marriage is still legal in Iowa.
"Unfortunately judicial elections across the country are being politicized," said Ternus. Now justices are being criticized for their decisions and intimidated into making decisions based on politics and not the rule of law. "I hope we never reach a point in this country where judges become theologians in robes ignoring the rule of law in favor of biblical teachings," she said.
"Only an independent judiciary can insure that the minority is protected from the tyranny of the majority and only a non-political judiciary committed to the rule of law can safeguard every citizens right to a fair hearing before an impartial tribunal," said Ternus.
In a recent poll of justices, Ternus said that 46 percent believe that campaign contributions have some degree of influence on justices' decisions. The question that Ternus asks is "What kind of court system do we want? A court system based on public opinion polls, campaign contributions and political intimidation or a court system that issues impartial rulings based on the rule of law." If we want the rule of law to prevail we have to reject these other influences, she said.
During the Q&A Ternus was asked how the 2012 retention election differed from the 2010 retention election. Ternus said that less money flooded into Iowa from outside groups, Iowans weren't as susceptible to anti-gay forces and opinion on same-sex marriage had flipped.
One person asked about the ability to have a judiciary that is pure and Ternus explained that a pure judiciary isn't possible because there isn't a way to get away from politics.
Then Ternus was asked about her thoughts on the marriage case. Ternus said she didn't think about the issue (same-sex marriage) before the decision because she didn't want that information to enter into her judicial decision, but she is happy with the ruling because it was the right decision under the law. She heard from a number of people who were affected by the decision and until then "I didn't have an appreciation for how profoundly meaningful marriage equality was to those people until after our decision, and it was touching, very touching," she said.
Thomas Dudgeon, DuPage County judge and adjunct at Elmhurst College, asked Ternus how sitting judges can address politics in the judiciary in a public setting. Ternus said that judges should speak publicly using civics to explain the role of the courts and the importance of having an impartial judiciary. She said she gave similar speeches while she was on the bench.
Responding to other questions, Ternus said that re-incorporating civics into our education system would help to educate the American public about the judiciary, a mandatory retirement age for Supreme Court justices would be a great thing, and that we should look into the influence that money plays in our election process because that money could be used in more constructive ways.
A representative of the student government association, Andrea Kmak, presented Ternus with a gift from the college following her remarks.