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Judges Should be Accountable to the Law, Not Public Opinion

Lawmakers’ reaction to a lower court judge who struck down Arkansas’s same-sex marriage ban could have profound consequences for the fairness and impartiality of our courts.

  • Allyse Falce
September 17, 2014

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.

(Photo: Think­stock)