Guest Columnist

Supermajority proposal undermines judiciary, rights of Iowans

An attorney argues a case before the Iowa Supreme Court on Feb. 14, 2018, in Des Moines, Iowa.
An attorney argues a case before the Iowa Supreme Court on Feb. 14, 2018, in Des Moines, Iowa.

Senate File 2282, which the Iowa Senate recently passed, would require a supermajority of the Iowa Supreme Court — five of the Court’s seven members — to hold a statute unconstitutional. Currently, the Court can strike down a statute as unconstitutional with a simple majority.

Simply put, the legislature wants to make it harder for courts to overturn the legislation it enacts. Although this may seem like a small change to some, if the bill becomes law it would seriously undermine the principle of separation of powers on which our system of constitutional democracy is based.

The Iowa Constitution, not surprisingly, vests the state’s judicial power in the judicial branch. Article III, Section 1, describes the “three separate departments” of the government of Iowa: legislative, executive, and judicial. It specifically requires each department to “stay in its lane”: “[N]o person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others….” Thus, the legislative branch should not interfere with the judicial power to determine how its cases are to be decided.

Separation of powers is not a pesky, archaic impediment to the business of government — it is rather one of the brilliant “checks and balances” devised by the founders of our country, which the drafters of Iowa’s constitution wisely copied.

Judicial review of legislative action is one of the pillars of those checks and balances. The federal and state constitutions, under our system, are the supreme laws of the land. If the legislature exceeds its authority in a particular statute, it is absolutely essential that the judicial branch be empowered to check that excess.

In the first United States Supreme Court case holding a statute unconstitutional, Marbury v. Madison (1803), Chief Justice John Marshall explained the necessity of allowing courts to rule on the constitutionality of legislative actions. Without this power, “courts must close their eyes on the constitution.” This result, Marshall said, “would subvert the very foundation of all written constitutions … It would be giving the legislature a practical and real omnipotence.”

In Senate File 2282, the General Assembly is seeking, if not omnipotence, at least a big step in that direction. By restricting the ability of the Iowa Supreme Court to rule statutes unconstitutional, the legislature is not only invading the province of the courts, but also enlarging its own power. Once the lines between the branches become blurred, the carefully defined constitutional roles begin to break down. After all, separation of powers is what prevents the Supreme Court from meddling in the details of the General Assembly’s procedure for passing legislation.


Checks and balances, by design, mean that the majority will not always prevail. Judicial review is counter-majoritarian for a reason: to prevent the majority from trampling on the constitutional rights of the minority. That should not be a partisan issue: The Supreme Court has struck down legislation emanating from both sides of the aisle. Without that check, the whole bill of rights — protecting property, freedom of speech and religion, equal protection and due process — is in jeopardy.

Of course, the majority dislikes it when its enactments are negated by the judicial branch. But that is the price we pay for protecting the rights of the minority — which, in any given case, may be you. Changing the carefully designed balance of power just because you do not always like the results would be like allowing batters to ask for four strikes instead of three just because their batting average is going down.

Judicial rulings striking down statutes are rare, because the Iowa Supreme Court already has several checks in place. For example, the Court always begins with a presumption of validity for legislative enactments — a “thumb on the scale”, if you will, in favor of constitutionality. In addition, the Court uses statutory interpretation to save the statute if there is any way it can be read in a constitutional manner. In other words, the Court recognizes that respect for a coequal branch demands that judicial review be undertaken with caution.

The General Assembly needs to accord the judicial branch that same respect. Chief Justice Marshall declared simply: “It is emphatically the province and duty of the judicial department to say what the law is.” Although the legislature may not like sharing the duties of government, that’s our system. It was a brilliant idea in 1787 and it remains so today.

Appropriately, on April 14, the Drake Constitutional Law Center’s annual symposium will focus on the topic: “Is Constitutional Democracy Endangered Here and Abroad?” The event is free and open to the public. We hope you will attend and learn more about potential threats to our democratic system. Consult our website for more details and registration.

• Jerry L. Anderson is Dean and Calkins Distinguished Professor of Law, and Mark Kende is James Madison Chair and Director of the Constitutional Law Center at Drake University.

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