Gavel Grab

The Iowa Supreme Court has weathered a “perfect storm” of anti-judicial sentiment that began in 2010, says State Court Administrator David Boyd.

A controversial decision in 2009 concerning same-sex marriage was followed by state budget cuts that brought disruption to the court, the WCF Courier quoted Boyd as saying. In 2010, Chief Justice Marsha Ternus and Associate Judges Michael Streit and David Baker were ousted in a retention election.

Gov. Terry Branstad has since appointed three new justices, but a backlog of cases developed during the turnover period. Boyd says the court is now back on track.

“I think as an organization, we’ve made great strides. I think there’s a lot less angst than there was a few years ago,” he said.

Things continued to improve in 2012 when Justice David Wiggins withstood a negative, anti-retention campaign and maintained his place on the bench. Boyd says it was due to the work of the Iowa State Bar Association and judicial advocacy organizations.

“The way I view 2010, it was kind of like the perfect storm. I think there were a lot of people – at least those that talked to me – who just didn’t think it could happen and consequently maybe didn’t turn the ballot over and vote or didn’t talk to their family and friends,” Boyd said.

The Supreme Court has set March 26 and 27 for oral arguments in two historic cases about marriage for same-sex couples.

The court had agreed in December to hear a case challenging a California law barring marriages of same-sex couples, and another challenging part of a federal law that denies federal benefits to same-sex couples who are married.

Arguments in Hollingsworth v. Perry, involving California’s “Proposition 8,” will be heard March 26. Arguments in United States v. Windsor, dealing with constitutionality of the federal Defense of Marriage Act, will be heard March 27, according to a CBS News report.

The cases are among several blockbusters involving issues of equality that the high court is facing in 2013, according to a recent analysis by constitutional law scholar Erwin Chemerinsky (see Gavel Grab).

The U.S. Supreme Court could issue even more blockbuster rulings broadly affecting Americans in 2013 than in the prior year, constitutional law scholar Erwin Chemerinsky suggests.

In an ABA Journal article, Chemerinsky focuses on cases involving “issues of equality:” dealing with the federal Voting Rights Act; affirmative action in college and university admissions; and marriage for same-sex couples.

Chemerinsky is Dean and Distinguished Professor of Law at the University of California, Irvine School of Law. He concludes about the high-profile cases:

“These decisions likely will affect, and perhaps determine, who gets into colleges and universities, who will get to vote and how, and who can marry. They are also likely to address the most important and intimate aspects of many people’s lives. Underlying each of the cases are important issues concerning the meaning of equality. It will be another blockbuster year in the Supreme Court.”

A debate is starting over calls for Supreme Court Justice Antonin Scalia to step aside from hearing two same-sex marriage cases before the court.

Columnist Bill Press wrote a Chicago Tribune commentary entitled, “Scalia has no right to rule on same-sex marriage.” Press contended, “After equating homosexuality with murder, how can he possibly consider the facts and rule fairly on same-sex marriage?” Press cited comments by Justice Scalia in a public address at Princeton (see Gavel Grab).

At Huffington Post, a commentary by Michael Russnow was headlined, “Scalia’s Gay Stance Is Unacceptable: Recusal From Supreme Court Deliberations on DOMA and California Proposition 8 Is Called For.” If Justice Scalia does not recuse, “it may be time to consider impeaching him,” Russnow added.

Matthew J. Franck responded with a National Review Online piece, “Re: Idiotic Claims for Scalia’s Recusal.” Franck wrote, “Clearly, Justice Scalia knows exactly what it is permissible for him to discuss, under the standards of recusal ethics, and what it is not permissible for him to discuss.” Franck gave what he called further context about Justice Scalia’s Princeton remarks to build a case against recusal.

Last week, a law professor’s call for impeachment of Justice Scalia was discussed in Gavel Grab.

When the Supreme Court is in the public eye over a controversial case, the daily drumbeat of coverage and commentary can offer the public a fragmented kind of mini-course about how the court works.

That’s especially evident in media coverage and the blogosphere just a week after the court agreed to consider two historic same-sex marriage cases (see Gavel Grab for background):

• Linda Greenhouse focused in a New York Times Opinionator blog post on “the procedural minefield the court has laid around these cases,” saying it has major potential implications too.
• At Reuters, Alison Frankel wrote about judicial impartiality, recusal, and the Supreme Court’s own self-policing in a piece headlined, “Should Scalia step aside in gay marriage cases?”
• A Washington Post editorial said that as much as some people hope for a sweeping ruling that declares a constitutional right of same-sex couples to marry, Read more

Because the Supreme Court agreed to two historic cases about same-sex marriage, any  related remarks by a justice, even if tangential, are assured heightened public scrutiny.

That’s the level of scrutiny that Justice Antonin Scalia has received after explaining to an audience at Princeton this week why he equates laws against sodomy, with laws against bestiality and murder. An Associated Press article gave this account:

“It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd,’” Scalia told [freshman Duncan] Hosie of San Francisco during the question-and-answer period. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

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A deluge of news media coverage and commentary followed the Supreme Court’s decision on Friday to take up two cases involving same-sex marriage (see Gavel Grab).

Months in advance of oral arguments, the court’s decisions to hear challenges to the federal Defense of Marriage Act and California’s Proposition 8 were described in historic terms. Overnight, the court became the focus of widespread attention. Here is a sampling of the coverage:

Emily Bazelon at Slate, “The Civil Rights Case of Our Generation: The Supreme Court has agreed to consider the constitutionality of gay marriage; This is gonna be big;” David Savage of the Los Angeles Times, ”Supreme Court showdown expected over gay rights decisions; Conservative giants Anthony Kennedy and Antonin Scalia are likely to be on opposing sides when the justices rule on marriage and federal benefits;” Adam Liptak of The New York Times, Same-Sex Issue Pushes Justices Into Overdrive;” and Mark Sherman of the Associated Press, “Hope and fear in gay marriage cases at high court.” Read more

The Supreme Court agreed on Friday to hear a case challenging a California law barring marriages of same-sex couples, and another challenging part of a federal law that denies federal benefits to same-sex couples who are married.

With its decision to “enter the national debate over same-sex marriage,” as a New York Times article characterized the high court’s action, the court returns to the center of national attention. The court “took on what will be one of the most important issues in its history,” CNN reported.

A decision is expected by June in the high-profile cases.

The high court will review a lower court ruling that overturned California’s Proposition 8. The voter-approved law barred marriages of same-sex couples.  “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California,” a panel of the Ninth U.S. Circuit Court of Appeals said (see Gavel Grab). Read more

The Supreme Court was scheduled to consider in private conference on Friday whether to take up any of a number of appeals touching on same-sex marriage. There was widespread news media anticipation of an announcement coming as early as Friday afternoon.

“The political, social, and legal stakes of this long-simmering debate will once again put the high court at the center of national attention,” CNN reported.

According to the Associated Press, the high court could choose not to focus on the constitutionality of same-sex couples marrying and instead zero in on a narrower issue: “whether Congress can prevent legally married gay Americans from receiving federal benefits otherwise available to married couples.”

With their Election Day votes to retain Iowa Supreme Court Justice David Wiggins, a majority of Iowa voters signaled they “have had enough of attempts to politicize courts in our state,” a Sioux City Journal editorial said.

The editorial was headlined, “Iowans reject continued politicization of courts.” The editorial contrasted this year’s vote to retain Justice Wiggins with a successful campaign in 2010 to remove three justices from the bench. Social conservatives have sought to unseat all four justices over a 2009 ruling, Varnum vs. Brien, that Iowa’s constitution protects the right of same-sex couples to marry. The editorial said:

“With the decision to retain Wiggins, Iowans rejected the most recent attempt to extract political retaliation for the unanimous, but controversial Varnum vs. Brien ruling and delivered a message of opposition to the short-sighted injection of politics into our state’s judicial system. In short, they stood in support of the integrity of our courts.”

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