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Let’s eliminate the phrase ‘unelected judges’ from our discourse

(Note: I’m about to go on a rant. The views expressed in this post, as with all of my posts, are mine alone and do NOT represent the views of the federal government or my department. Here we go…)

Last week, the U.S. Supreme Court issued two landmark decisions: King v. Burwell, upholding federal subsides under the Affordable Care Act; and Obergefell v. Hodges, finding a constitutional right to same sex marriage and mandating nationwide recognition of those marriages. The decisions have drawn intense support and harsh criticism. While my personal beliefs on the outcomes of the cases are not the purpose of this post, I take issue with how some Republicans are handling the rulings, specifically their use of a phrase that irritates me to no end — “unelected judges.”

Several prominent members of the Republican Party have used this phrase to denounce the decisions. For example, former Pennsylvania senator and current presidential candidate Rick Santorum tweeted, in response to the Obergefell decision, that “five unelected justices decided to redefine the foundational unit that binds together our society without public debate or input.” Sen. Ted Cruz of Texas, another presidential hopeful, told NBC’s Savannah Guthrie, “What happened last week is twice, back-to-back, the U.S. Supreme Court — a majority of the justices violated their judicial oath. What we saw instead is five unelected lawyers saying the views of 320 million Americans don’t matter because they’re going to enforce their own policies.” (I take particular issue with Sen. Cruz’s remarks as he is a former clerk to the late Chief Justice Rehnquist). And Texas Attorney General Ken Paxton tweeted that the Obergefell opinion “has made clear our Constitution can be molded to mean anything by unelected judges.”

I get it — the Republicans are not happy with either of the decisions. However, every time I hear the phrase “unelected judges,” it shows a fundamental lack of understanding of how our government works. The foundation of our country is the system of checks and balances between three equal branches of government, two of which are politically accountable. The judicial branch was never intended to be, nor should it ever be, politically and democratically accountable. A strong and independent judiciary has been the cornerstone of our government since the ratification of the constitution and is irreplaceable.

In uniting support for the ratification of the Constitution, Alexander Hamilton in Federalist Paper No. 78 wrote “the complete independence of the courts of justice is peculiarly essential in a limited Constitution.” Hamilton went on to argue that:

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

I cannot put it any better than Hamilton in stating the purpose of an independent judiciary: “[t]his independence of the judges is equally requisite to guard the Constitution and the rights of individuals[.]”

Being the politically unaccountable branch allows the judiciary to perform its function just as Hamilton urged, guard the Constitution and assure the rights of the individuals. The Obergefell decision is not the first time the Supreme Court has mandated social change and guaranteed rights under the Constitution. Brown v. Board of Education had significant public opposition in the South, much like Loving v. Virginia. However, it is the fundamental responsibility of the judiciary to protect the freedoms and rights of individuals that are mandated by the Constitution and to ensure those protections are not unlawfully restricted because of legislative and public disapproval.

Unfortunately, we have seen what happens when judges are forced to be politically accountable. Iowa has a system of retention elections for judges. In 2009, the Iowa Supreme Court unanimously held that the state’s legislative ban on same sex-marriage violated the equal protection clause of the state’s constitution. The court, in beautiful recognition of its purpose, stated:

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.

In response to that decision, the chief justice and two associate justices were voted off the in the election following the decision, simply for doing their job. It was the first time an Iowa Supreme Court justice lost a retention vote.

We should have debates about important political and social issues. We should know where political candidates and elected officials stand on these issues. However, the use of inflammatory and insulting phrases like “unelected judges” does nothing to encourage and enhance the discussion. It is simply inappropriate, unnecessary, and pedantic.

Don’t use the phrase “unelected judges” as rhetoric to oppose a Supreme Court opinion. Please debate the issues but don’t attack the system for working exactly as it is designed because you are upset with the result.

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