Court System’s Independence in Crosshairs of Special Interests, Rightwing Lawmakers

October 9, 2012

By Jeremy Leaming

Special interests are ratcheting up their efforts to influence the make-up of state courts, which handle the bulk of the country’s legal actions. These special interests, in large part, are riled over certain rulings of state courts in Iowa, Florida and a string of others, and willing to spend boatloads of money to change those courts. 

Recently this blog noted the 2010 effort by Christian rightists to unseat Iowa Supreme Court justices for their involvement in a 2009 opinion that invalidated a law barring same-sex marriage. (In Varnum v. Brien, the Iowa higher court said the law violated the state constitution’s equal protection clause.) The effort was led by groups, such as the National Organization for Marriage, the American Family Association and other religious groups bent on demonizing the LGBT community, in part by opposing equality efforts. That effort was successful in removing three of the Iowa State Supreme Court justices, and some of those same groups are gunning for another justice involved in the Varnum majority – Justice David Wiggins. The New York Times blasted the effort to oust Wiggins in a so-called retention vote on Election Day as a “battle over the future of a fair and independent judiciary.” The Times’ editorial went on to state that retention votes were meant to remove judges from the bench because of corruption or incompetence, not because of unpopular rulings.

In a panel discussion organized by Justice at Stake for this year’s Lavender Law conference, several of the panelists noted that state judges who have issued rulings in favor of marriage equality have often been the target of efforts to yank them from the bench. Lambda Legal’s Eric Lesh said courts nationwide “face real threats from well-funded, special interest groups that seek to politicize our judiciary and undermine the integrity of our justice system.”

It’s not just state court opinions advancing equality that are triggering threats to state courts.

For instance, in Florida three state Supreme Court justices are being targeted by state Republican lawmakers and a Koch brothers’ Super Pac for removal from the bench. Part of the reason for the well-funded effort to remove the three justices is due to their involvement in squelching a 2010 ballot measure saying that Floridians could opt of the Affordable Care Act. (Earlier this year, the U.S. Supreme Court upheld the constitutionality of the landmark health care law.)

Justice R. Fred Lewis, who is being targeted for removal, said, “Any time you have the threat of a judge making a decision because he or she is looking over her shoulder or his shoulder as to who has the check book behind you the next time around you’ve just defined a corrupt system,” The Associated Press reported.

In the first of a three-part series, the Atlantic’s Andrew Cohen details a court system that is becoming less independent and more closely aligned with corporate interests. (A recent film by the Alliance for Justice argues that the U.S. Supreme Court led by Chief Justice John Roberts has already proven highly favorable to corporate interests.)

Whatever independence the state courts still have, Cohen writes, is being threatened by “special interest groups, by radical politicians, and even by some of their own – judges who trade both in honor and integrity and by begging for votes (and campaign contributions) from the very litigants before them.”

Judicial impartiality Cohen continues is a “vital part of the due process guarantees of the Constitution.” He says the system has always been a bit skewed to powerful interests but “now the gulf between what impartial justice is supposed to look like and what it actually is for hundreds of millions of Americans is vast and widening.”

Cohen’s piece provides other examples from Kansas, Louisiana, Oklahoma and New Hampshire where lawmakers and special interests are feverishly working to further damage independence of the courts. He argues that we are a witnessing “an act of war by one branch against another, a partisan attempt to help certain litigants at the expense of other litigants by trying to restructure the judicial branch itself.”

It makes for a fascinating yet rather disheartening read. As a recent ACS paper argues the make-up and independence of courts is incredibly important to the lives of Americans, and that more should pay attention to the influences upon them. The ACS paper focuses on the make-up of the Supreme Court and how its decisions help or harm cherished rights.