As ACSblog has documented, recent events in Iowa have put the spotlight on judicial elections and their relationship to the big constitutional controversies of the day. Some prominent politicians, including Newt Gingrich and Mike Huckabee, have celebrated the unseating of three Iowa Supreme Court Justices who voted in favor of a constitutional right to same-sex marriage. Others have blasted this development as a threat to constitutionalism and the rule of law.
While this debate rages on, an article forthcoming in the Columbia Law Review suggests a new lens through which to think about what happened in Iowa. In "Judicial Elections as Popular Constitutionalism," David Pozen argues that judicial elections can be understood as instruments of "popular constitutionalism" -- venues in which ordinary citizens confront, debate, and register their beliefs on state and national constitutional questions. "By subjecting their judges to periodic elections," Pozen notes, "more than three quarters of the states give citizens a powerful tool with which to check the judges' interpretive outputs, as well as a recurring focal point with which to stimulate and structure constitutional deliberation."
Pozen explains that there is a legitimate case to be made that using judicial elections as tools of popular constitutionalism can promote democratic values by enhancing the public's engagement with the courts and the court's responsiveness to the public, thus tightening the link between voters and judges.
But, Pozen says that these elections can, in a variety of ways, undermine the very democratic values they are meant to serve. "At the same time that it provides an important new framework and vocabulary with which to defend elective judiciaries," Pozen concludes, "popular constitutionalism also points the way toward an original critique. For in the service of aligning judges more closely with ‘the people,' judicial elections do more than threaten collateral damage to values such as legality and equality: They threaten to undermine the democratic aspirations of popular constitutionalism itself."