As Zager goes, so goes the court.
So says Ryan Koopmans, an attorney at the law firm of Nyemaster Goode PC in Des Moines, who has elevated Iowa Supreme Court watching from hobby to habit.
He and colleague Hilary Hippen-Leek have collected data from every Iowa Supreme Court decision since April 1, 2011, and plugged it into a database kept at the law firm. Koopmans is analyzing the data and, he said, he may post his findings on the legal blog http://iowaappeals.com that Nyemaster attorneys post on.
It’s been two years since a statewide effort to remove three judges from the Iowa Supreme Court bench got under way. The effort was led by conservatives angry over the ruling in Varnum v. Brien, which legalized same sex marriage in Iowa.
The effort was successful, and three new justices — Thomas Waterman, Edward Mansfield and Bruce Zager — were sworn in on Feb. 23, 2011. They were seated on March 24, 2011, and gave their first decision as a new court on April 24, 2011.
Now, with more than a year on the bench, some patterns of this court are beginning to emerge.
“Zager is always with the majority,” Koopmans said. “He hasn’t been with a dissent yet.”
Koopmans’ observation jibes with an analysis done by The Gazette’s Des Moines Bureau. Of the 18 full or partial dissenting opinions filed since April 2011, Zager hasn’t authored or joined one. That makes him an important swing vote on the seven-member court. The other swing vote, the numbers show, appears to be Brent Appel who was appointed in 2006.
The two seem to move between joining Waterman and Mansfield on one end and Chief Justice Mark Cady and Justices David Wiggins and Daryl Hecht on the other, when there is split vote. The analysis does not include attorney discipline cases.
Still, court watchers say it’s difficult to tag any of the justices with a necessarily liberal, conservative or other ideology.
“It’s too early to say right now,” said Jonathon Rosenbloom, a Drake University law professor who specializes in state and local government issues.
Courts not alike
State supreme courts are, by design, not like the U.S. Supreme Court, where the justices typically are lumped into one of two ideological camps.
For example, the U.S. Supreme Court often takes on the most politically charged cases dealing with federal policy. Where judges line up on these cases can give observers insight to the political ideology of a particular judge.
State supreme courts often handle a wide variety of cases that don’t necessarily have a partisan component, as in Iowa where justices decide attorney discipline cases and state policy interpretations.
And Iowa’s Supreme Court is set up to be less ideological by virtue of the way commissions pick judicial nominees, instead of relying solely on the chief executive to do so.
“Iowa isn’t like some of these other states, like Wisconsin, where you see ideological battles playing out on the Supreme Court,” Rosenbloom said.
There, disagreements over the law that limits bargaining rights for public workers reportedly led to Chief Justice David Prosser physically accosting a fellow judge.
By way of comparison, the most politically charged case that the current Iowa Supreme Court ruled on arguably was the lawsuit filed by Democratic lawmakers and union members over Gov. Terry Branstad’s plan to close Workforce Development offices.
That ruling, issued on March 16, was unanimous and fell largely against the governor.
That ruling is like the vast majority of the court’s decisions in that there is unanimous agreement on the court in most cases.
“Definitely,” Koopmans said. “We tend to focus on the disagreements because they are more interesting.”
Bob Vander Plaats, who led the campaign to oust the three judges in 2010, said the unanimity of the court doesn’t bother him.
“We have people who watch the court and attorneys from across the state who help us watch the court,” said Vander Plaats, who heads the socially conservative Family Leader organization. “They have not alerted us to any issues with the current court that I’m aware of.”
He said the recall campaign of 2010 wasn’t that conservatives disagreed with the same-sex marriage decision, but about “judicial overreach” by the court.
He said he had hoped that the success of the recall campaign would lead to passage of man-woman marriage legislation and to the resignation of the four other justices on the court.
“Obviously, that didn’t happen,” he said.
He added that the organization hasn’t decided if the organization is going to mount a campaign against Wiggins, who is up for retention in November.
“We don’t get all hung up on who is a liberal judge and who is a conservative judge,” Vander Plaats said. “We want judges who follow the Constitution.”