Cady Speaks

Iowa Supreme Court Chief Justice Mark Cady met with The Gazette's editorial board for about an hour today. He's traveling the state, meeting with media types and Iowans hoping to boost the court's profile after November's retention vote bouncing three justices from the bench.

I've got a print column percolating, but in the meantime, here are some excerpts of Cady's responses to some of the questions I asked during the meeting.

Q - One of the main criticisms you hear leveled against the court is that it's somehow a collection of elitists, aloof, a ruling class. We heard criticism after your speech that you were talking down to the Legislature. There was even concern that you turned around to wave to the gallery(where gay rights activists were seated.) What do you make of that whole line of criticism?

“I find myself in the position of being the chief justice of our court, and our court is in charge of operating a very critical branch of government. I see, as all Iowans do, this branch of government is under attack. It went through a retention election where we lost three members of our court. We find ourselves in the midst of cries from government officials of impeachment. We have a lot of discussion that the court was overreaching on a particular decision or perhaps other decisions. And I found I believed it was necessary for me to address those matters and stand up and defend our system of justice we do have, defend the role of our court in our society and support what this court has accomplished in our history. If that's construed to be arrogant, I just think we need to make ourselves more open and more transparent so Iowans can really see what this is about."This issue, believe me, is not about me as an individual. It's not about any sort of attacks people want to make against me as an individual. This is all about our courts system, the public's court system, and our constitutional role in our form of government.”"And that wave to the crowd, I, uh, I spoke to the General Assembly with my back towards the people in the back balcony for 50 minutes. I found myself walking out of the chambers with my back to them as well. And I felt it was a gesture of politeness to turn and acknowledge that they took the time to come and see me. I didn't want them to see me again with my back to them as I walked out. My motivation was simply what my mother taught me to do and be polite and be thankful that people had taken the time to show their appreciation.”

"This issue, believe me, is not about me as an individual. It's not about any sort of attacks people want to make against me as an individual. This is all about our courts system, the public's court system, and our constitutional role in our form of government.”

"And that wave to the crowd, I, uh, I spoke to the General Assembly with my back towards the people in the back balcony for 50 minutes. I found myself walking out of the chambers with my back to them as well. And I felt it was a gesture of politeness to turn and acknowledge that they took the time to come and see me. I didn't want them to see me again with my back to them as I walked out. My motivation was simply what my mother taught me to do and be polite and be thankful that people had taken the time to show their appreciation.”

Q -- Critics say the Varnum decision flies in the face of natural law, God's law, and that the court imagined new rights without a constitutional basis. How do you respond to the assertion that the state constitution is based on God's law and your ruling flies in the face of that?

“What our roles is as judges in this state is to uphold and protect the constitutional rights that are enumerated in our constitution. And that is our duty, and that is our responsibility. That is also the document in which the will of the people has been expressed. And so courts look to that document. They look to the language in that document to determine how it applies to the life that we find ourselves in today.“And so, the Varnum decision comes from the constitution. It comes from the principles that have been announced and carried out for 170 years in that constitution. And it's not about any personal opinions of any judges or anything of that nature. It's simply what the constitution says."

“And so, the Varnum decision comes from the constitution. It comes from the principles that have been announced and carried out for 170 years in that constitution. And it's not about any personal opinions of any judges or anything of that nature. It's simply what the constitution says."

Q -- The counter argument is that the constitution doesn't mention that right. How do you get from 1857 and the various amendments to where you went?

“I think the more important question is not what the constitution mentions in the context of civil marriage. You're right, those words are not found in the constitution. But their absence from the constitution is of not of critical importance, because what is in the constitution is an individual right, a freedom, that all Iowans are protected by. And that, Article 1, Section 6 states that the General Assembly shall not pass any law that grants privileges to any citizen or group of citizens that does not apply equally to all citizens. That's the constitutional language that we looked at in Varnum.“There was a civil marriage law on the books passed by the General Assembly. So we have a constitutional principle that speaks of equality of all citizens, all Iowans, and we had a statute that confined privileges only to certain citizens. So the constitutional provision that we were examining did not state any exceptions, did not except out any groups of Iowans. So that's what we were confronted with. And that's the same principle we have continued to apply since we became a state, or even before that.“I think a good example is the 1876 Clark decision out of Muscatine, the school segregation case. And we made it clear then, when there's a constitutional principle that speaks in an absolute, as Iowa's equal protection clause does, judges don't have any discretion to make up or to find exceptions to that. That would actually be going beyond what our constitution says. We can confine ourselves to that document and apply it to those important issues that Iowans have brought to the court throughout history. And that Iowans brought to the court in Varnum. And the serious issues Iowans will bring to the court tomorrow. “

“There was a civil marriage law on the books passed by the General Assembly. So we have a constitutional principle that speaks of equality of all citizens, all Iowans, and we had a statute that confined privileges only to certain citizens. So the constitutional provision that we were examining did not state any exceptions, did not except out any groups of Iowans. So that's what we were confronted with. And that's the same principle we have continued to apply since we became a state, or even before that.

“I think a good example is the 1876 Clark decision out of Muscatine, the school segregation case. And we made it clear then, when there's a constitutional principle that speaks in an absolute, as Iowa's equal protection clause does, judges don't have any discretion to make up or to find exceptions to that. That would actually be going beyond what our constitution says. We can confine ourselves to that document and apply it to those important issues that Iowans have brought to the court throughout history. And that Iowans brought to the court in Varnum. And the serious issues Iowans will bring to the court tomorrow. “

Q -- You mentioned the Brown decision in your speech last week. There's a famous historic narrative of how difficult it was to get a unanimous ruling in that case. Was that how Varnum was, or did unanimity come easily?

“We all worked on this case as hard as humanly possible. We pored over all of the evidence submitted in the case. We carefully reviewed all the arguments, all of the authorities. We did everything that would be expected of a court to do.“I think the unanimity in the opinion reflects that hard work. And it reflects the fact that we were a court that performed its constitutional role. And it wasn't a court that allowed any other thing to seep into that opinion other than our constitutional role and what the constitution has to say.”

“I think the unanimity in the opinion reflects that hard work. And it reflects the fact that we were a court that performed its constitutional role. And it wasn't a court that allowed any other thing to seep into that opinion other than our constitutional role and what the constitution has to say.”

Q -- You said the prospect of judges having to raise money and wage campaigns bothers you. But would you agree that the next time this happens, the folks who support the courts are going to have to fight harder?

“It's going to be a clarion call to people. Because, I thought the election in November was going to be that tipping point where Iowans could stand up and say ‘No, we like the system that we have,' and retain these judges, even if it was a decision you might not be able to accept. It at least was a decision that these judges made under the duty their assigned to perform under the constitution. It didn't work out that way."“It makes it clear that judges are going to have to begin raising funds to fight back unless the public can give us a message that unpopular decisions are not going to be a part of the retention process, that unpopular decisions are not going to give rise to cries of impeachment.“We do need the public to stand up and support the court system. And if we don't, then judges are going to have to start raising funds.“We need to defend ourselves. We never have had to really do that. But we saw the consequences of not doing that.”

“It makes it clear that judges are going to have to begin raising funds to fight back unless the public can give us a message that unpopular decisions are not going to be a part of the retention process, that unpopular decisions are not going to give rise to cries of impeachment.

“We do need the public to stand up and support the court system. And if we don't, then judges are going to have to start raising funds.

“We need to defend ourselves. We never have had to really do that. But we saw the consequences of not doing that.”

Q -- Some saw the November election as a vote of no confidence in the court and said the rest of you should resign. Was there any consideration of that?

“Absolutely not. We have too much at stake. This is not about any individual judges. It's not a time for people on the bench who are trying to uphold the system that we have to think about resigning. This is a time to step forward and help inform everyone of really what we're really all about, the way we operate and the good work that we do.“That would send the exact wrong message. And I think it would disappoint the people who understand and have been through our system and have seen how it does work.”