One of the more remarkable results from last night's election was the non-retention of three Iowa Supreme Court justices. It had been 48 years since an Iowa justice had not been retained, and the impetus here seemed to be the 2009 same-sex marriage opinion that the unanimous Court issued. These were the only three justices on the retention ballot, so perhaps more would have been dumped had they been on the ballot as well. Apparently, much of the money that fueled the campaign to oust the justices came from out of state sources.
I have mixed feelings about retention votes for state justices. Not retaining justices because of disagreement with a particular decision strikes me as not appropriate. I also don't believe in impeaching federal judges because of disagreement with particular decisions. On the other hand, I have to confess to thinking that it was not inappropriate for California voters to have ousted Rose Bird, Cruz Reynoso, and Joseph Grodin from the California Supreme Court in 1986, due to their repeated reversal of death sentences in every single case before them.
What is the difference between the Iowa justices and the California justices?
With the Iowa justices, they issued a decision of Iowa constitutional law. It was transparent what they did, and if the citizens of Iowa were sufficiently exercised about it, they had an available avenue of redress, which is to amend the state constitution to overturn the judicial decision. It's admittedly difficult to amend even state constitutions, but then, it should be. Something as momentous as overruling a state supreme court decision by popular vote should be difficult, so that it's not just overheated passion at play. (Remember that a few U.S. Supreme Court decisions have been overturned by amendments, including the 11th Amendment.)
With the California justices, on the other hand, they did not transparently strike down the death penalty under the California constitution, which would have allowed the amendment process to overturn that decision. Instead, they ruled on technical grounds that prevented any subsequent recourse in those cases. Sure, the prosecutors could have retried the penalty phase in some of the cases, but since Bird et al. reversed every single death case they could, it would have been likely futile.
To be sure, there were no doubt reversible errors in some, indeed, maybe many of those cases. But every single one? As Justice Mosk (a contemporary of Bird's) put it:
Rose Bird was pilloried because she generally voted to find some defect in death penalty convictions and to reverse them. I probably don't like the death penalty any more than she does. As a matter of fact, I think the death penalty is wrong, that a person has no right to kill, and the state has no right to kill. But the difference is that I took an oath to support the law as it is and not as I might prefer it to be, and therefore, I've written my share of opinions upholding capital judgments.
So, I think the difference is that Justices Baker and Streit and Chief Justice Ternus (Iowa) were faithful to their judicial oaths, whereas Chief Justice Bird and her two colleagues arguably had not been. Non-retention therefore seems acceptable in the latter instance -- though, to be fair, one could argue that impeachment would have been preferable.