“Don't they Understand Judicial Independence?” Discourses of Judging in Undergraduate Legal Studies Classrooms: Judicial Retention and Same-Sex Marriage Rulings

DOIhttps://doi.org/10.1108/S1059-4337(2012)0000058006
Pages45-71
Date20 August 2012
Published date20 August 2012
AuthorRenee Ann Cramer
‘‘DON’T THEY UNDERSTAND
JUDICIAL INDEPENDENCE?’’
DISCOURSES OF JUDGING IN
UNDERGRADUATE LEGAL
STUDIES CLASSROOMS: JUDICIAL
RETENTION AND SAME-SEX
MARRIAGE RULINGS
Renee Ann Cramer
ABSTRACT
Undergraduate legal studies classrooms are ideal places in which to
engage discourses on judging, and to invite students to analyze and
understand contemporary cultural and political representations of the
proper roles of judges and judging in democracies. This chapter examines
undergraduate understandings of judicial independence and judicial
activism, via class discussions surrounding the judicial retention election
in Iowa in 2010. The election was occasioned by the groundbreaking
state supreme court case Varnum et al. v. Brien (2009), legalizing same-
sex marriage in the state. Drawing on participant–observation research
Special Issue: The Discourse of Judging
Studies in Law, Politics, and Society, Volume 58, 45–71
Copyright r2012 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058006
45
as a professor in these courses, and examining student dialogue, class
discussion, and web-board postings on the topic, I find that legal studies
students are able to articulate a complex range of views regarding the
judiciary, judicial activism, and same-sex marriage. Their ability to
engage in (mostly) civil discourse on the topic of judging is of particular
societal importance, given the limitations of contemporary public
discourses about judging. These findings point, as well, to the potential
role for engaged academics in expanding and contextualizing public con-
versations about judicial independence, judicial activism, and rights. The
chapter also highlights, however, limits in that educational experience, in
particular students’ lionization of legal processes, simultaneous to their
cynicism about, and lack of engagement in, electoral/political processes.
This points to the development of interdisciplinary legal studies curricula
as a means toward effective education for democracy.
In a protest vote against ‘‘judicial activism,’’ a majority of Iowans recently
refused to retain the three judges responsible for a decision legalizing
same-sex marriage in the state. Polarizing discourses of judging at play in
the Iowa judicial retention elections entered my interdisciplinary, legal
studies classroom. Legal studies students were able to articulate a complex
range of views regarding the judiciary, judicial activism, and same-sex
marriage; their ability to engage in (mostly) civil discourse on the topic of
judging is of particular importance, given the limitations of current political
and electoral discourses about judging.
Voters in Iowa recently refused to retain three of the judges responsible
for Varnum et al. v. Brien (763 NW 2d 862), the 2009 decision legalizing
same-sex marriage in the state. The non-retention vote has no impact on
the validity of the marriages, no power to stop future marriages, and in the
same election, the same voters refused to authorize a Constitutional
Convention that would have opened the door to traditionalist and
conservative definitions of marriage. The ouster of the three judges was,
in essence, a protest vote to punish what radio and television ads called
‘‘judicial activism.’’
This essay examines the discourses of judging at play in the Iowa judicial
retention elections, from the vantage point of their entrance into my
undergraduate, interdisciplinary, legal studies classroom in the form of
student dialogue, class discussion, and web-board postings on the topic.
Undergraduate legal studies classrooms are ideal places in which to engage
RENEE ANN CRAMER46

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