What Happened in Iowa?

Abstract

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a constitutional right to same-sex marriage. Supporters of the campaign rallied around the mantra, "It's we the people, not we the courts." Voter turnout surged to unprecedented levels; the national media riveted attention on the event. No sitting Iowa justice had ever lost a retention election before.

This essay -- a reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011) -- explains why the Iowa elections corroborate, yet also complicate, the thesis that judicial elections offer important outlets for popular constitutionalism. While the retention vote sparked and validated an exceptional episode of constitutional mobilization, the role played by out-of-state interests highlights a number of difficult questions regarding popular constitutionalism's relationship to federalism and popular sovereignty. The essay concludes with a note on the prospects for judicial election reform.

Keywords: Popular constitutionalism, popular sovereignty, federalism, judicial selection, judicial review, state courts, state constitutions, constitutional law, judicial politics, Iowa, same-sex marriage, Proposition 8, Kramer, Post, Siegel, Caperton