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Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national media riveted attention on the event. No sitting Iowa justice had ever lost a retention election before.

Although unusually dramatic, this episode is continuous with what has transpired in other recent high court races. In fact, it bears striking parallels to the 1986 California Supreme Court race that helped launch the modern era of judicial elections. Then as now, a well-financed attack on one set of liberal decisions (overturning death sentences) led retention election voters to unseat three justices, including the chief justice, for the first time in the state’s history.


Constitutional Law | Judges | Law | Law and Politics | Legal History | Legal Profession | Sexuality and the Law | State and Local Government Law