Judges Should be Accountable to the Law, Not Public Opinion

An equal marriage rights case pending before the Arkansas Supreme Court has the potential to impact the lives of many of the state’s same-sex couples. But lawmakers’ reaction to a lower court judge who struck down the state’s same-sex marriage ban could have profound consequences for the fairness and impartiality of our courts.

After state circuit Judge Chris Piazza struck down Arkansas’s ban on same-sex marriage in May, a group of state lawmakers immediately tried to remove him from the court. Legislators, the National Organization for Marriage (NOM), and former governor Mike Huckabee all called for Piazza’s impeachment. Huckabee argued that Judge Piazza had decided “he is singularly more powerful than the 135 elected legislators of the state, the elected Governor, and 75 percent of the voters of the state,” and NOM branded him a “rogue judge.”

Ultimately, the Arkansas Legislative Council, a joint committee of House and Senate members that meets between sessions, adopted a resolution condemning Judge Piazza. The resolution said he “overstepped his judicial authority,” and its sponsors noted that “‘a loosely affiliated group of leaders in the state’ is working on a proposed initiated act to create a system of judicial recall.”

The Arkansas Constitution lays out clear conditions for the impeachment of a circuit court judge — the commitment of high crimes and misdemeanors, or gross misconduct in office. What is not on that list is unpopular decisions. Using impeachment or recall to punish a judge for a decision, or to pressure a judge to rule a certain way, is an abuse of that power.

Threats of impeachment put pressure on judges to decide cases based not on the law and constitution, but out of fear of losing their jobs. This kind of interference risks politicizing the courts, putting fair and impartial decision making at risk, and damaging public confidence in our system of justice. Indeed, just last month, the same-sex couples challenging Arkansas’ ban sought the recusal of any justice planning to run for reelection, arguing that the legislative council’s resolution creates “an appearance that outside influences could have an impact on those sitting justices who expect to seek election to court in the future.”  The recusal request was denied this week by the Arkansas Supreme Court.

A central function of any judge’s job is to review the legality of actions taken by the legislature and executive. This review allows judges to protect individual rights and liberties in the face of unconstitutional laws or executive actions. When a legislature threatens a judge with impeachment, that judge will be far less likely to strike down any bill passed by those lawmakers, weakening this essential judicial review process. 

Arkansas is hardly alone in threatening judges for merely doing their jobs.  A 2011 study found 14 impeachment bills in seven states for both federal and state judges, a record high at the time the analysis was published. “In all but two instances . . . the sole accusation was that the judge(s) in question issued opinions that displeased members of the legislature.”

Four Iowa Supreme Court justices were among those threatened with impeachment in 2011 after striking down that state’s ban on same-sex marriage. The year before, three other justices involved in that opinion lost their retention elections after a fierce campaign was organized to oust them. Within the past two years, congressmen have called for the impeachment of at least three federal judges after they found state same-sex marriage bans to be unconstitutional.

Judges have also been threatened with impeachment and recall for rulings beyond same-sex marriage cases. This spring, lawmakers called for the impeachment of five Oklahoma justices after they stayed the executions of two inmates in order to further examine the state’s lethal injection protocol. The justices eventually dissolved the stays, under pressure from the governor and legislature. The state later made headlines when one of the executions was botched.

Judicial recall and impeachment should not be used to pressure a judge into ruling in favor of popular will. It is not a judge’s job to follow popular opinion; their job is to follow the law.

When state lawmakers first called for Judge Piazza’s impeachment in May, GOP House Speaker Davy Carter spoke out against the effort, saying, “[W]e are not going to impeach the circuit judge because members of the House don’t like the decision . . . That’s the most absurd thing I’ve ever heard.” Others would be wise to follow Carter’s advice.  

Allyse Falce is a Research Associate at the Brennan Center for Justice.

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