Sidebar Publishes Response to “Judicial Elections as Popular Constitutionalism” & a Reply to that Response

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to David E. Pozen’s article, Judicial Elections as Popular Constitutionalism, by Professor Neal Devins of William & Mary Law School and Nicole Mansker and a reply to that response by the original author, David Pozen. In Judicial Elections as Popular Constitutionalism, Pozen conceptualizes judicial elections as vehicles of popular constitutionalism.

In their response, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, Professor Devins and Mansker, using the recent ouster of three supreme court justices who backed same-sex marriage in Iowa as an example, find judicial elections, as they exist today, unsatisfactory tools to facilitate the goals of popular constitutionalism, rather they suggest constitutional initiatives, referendums, and easy to amend constitutions as tools better suited to advance the goals of popular constitutionalism.  Professor Devins and Mansker’s main critique of Pozen’s conceptualization centers around the facts that while judges do take into account public opinion, the advancement of constitutional dialogue does not play a role in that decision, the issues that trigger public opinion in judicial elections are rarely of a constitutional nature, the pervasive influence of business and out-of-state interests on judicial elections, and, most importantly, the lack of voter interest in either the state or federal constitutions.

In his reply to Professor Devins and Mansker in What Happened in Iowa?, Pozen argues that the recent Iowa ouster campaign corroborates, but also complicates, his theory that judicial elections serve as outlets for popular constitutionalism.  Pozen acknowledges that  many of the issues Devins and Mansker raise about judicial elections are impediments to the realization of popular constitutionalism.  But, Pozen also argues that some of the very reasons that Devins and Mansker find judicial elections unfit to advance the goals of popular constitutionalism—the resulting politicization of the courts and the focus on single issues such as the constitutional status of same-sex marriage that was at issue in Iowa—are actually testaments to, rather than indictments of, the capacity of judicial elections to play this role.  Pozen concludes his reply with a note on the prospects of judicial election reform.

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