By Noreen Marcus, FloridaBulldog.org
The new hyper-conservative Florida Supreme Court delights abortion haters, gun lovers and law-and-order fans who want quicker executions to empty Death Row.
At the same time, it troubles liberals who remember the court’s progressive strides before it took a decisive turn to the right. Any expansion of civil rights and criminal justice slowed when Gov. Rick Scott started picking justices; Gov. Ron DeSantis’s choices have taken even moderation off the table almost entirely.
“There used to be this doctrine of liberal construction of civil rights laws to achieve justice,” said Robert Weisberg, a Miami civil rights lawyer. “That’s all ancient history right now.”
Weisberg won a landmark ruling in 1989 that expanded state law so victims of sexual harassment could sue for emotional distress. Previously they’d been limited to workers’ compensation.
Writing for a 6-1 court, Justice Rosemary Barkett found it was “our clear obligation” to enforce the strong public policy against sexual harassment.
But Weisberg wouldn’t expect to win the same case today. The justices’ approach would likely be “much different,” he said.
Florida justices tailor means to political ends
The justices seem intent on sweeping away the liberal rulings, or precedents, they dislike. If they have to rewrite the rules of procedure or analysis to reach their socio-political goals, so be it.
“I have never seen a court reverse its prior decisions in such a political way and such a disingenuous way,” said Stephen Harper, supervising attorney for the death penalty clinic at Florida International University College of Law.
Criminal defense lawyer Joel Hirschhorn said the court’s attitude is, “We are going to change the rules to adhere to our view of the rules, regardless of precedent and the significant value of stability to the law.”
“I think the Florida Supreme Court is more concerned with the political future than the humane needs of all people,” said Hirschhorn, a Miami litigator who has argued dozens of cases in Tallahassee.
Hirschhorn said he counsels less experienced colleagues to approach the court realistically. “This court has a political agenda,” he tells them, “and if your position does not fit that agenda, you’ll have a story to tell your grandchildren, but that’s all.”
Precedent as ‘sacred trust’
Courts that follow precedent remove politics from the process, said Janet Ferris, a retired Tallahassee trial judge.
“Precedent for an appellate court has always been a sacred trust within the court system because otherwise, there’s chaos,” she said. “If you proceed on precedent, you know what’s required for you to make a decision.
“But then the court decides we don’t care about some precedent. That really flies in the face of the way appellate courts have operated for a long, long time,” she said.
“I would not support this kind of approach even if it were wild-eyed liberals,” Ferris said.
Past court rulings set up what she sees as a guardrail against intellectual dishonesty and activism. Judges who ignore or overturn them can reshape the law to suit themselves.
The conservative approach
But conservative legal theorists, chief among them The Federalist Society, say it’s the wild-eyed liberals who are the activists—not them. They accuse liberals of trotting out spongy notions of public policy and legislative intent to justify their own type of social engineering.
In contrast, conservatives say, they apply principles such as “textualism” to honor the plain meaning of laws and execute what legislators, or framers of the U.S. Constitution, had in mind. The late U.S. Supreme Court Justice Antonin Scalia pioneered this analytical method.
“Textualism … is not necessarily conservative but objective, accepting the contextual meaning that the words had when the law was enacted,” attorney D. Matthew Allen wrote in a Jan. 30 opinion piece for the Tampa Bay Times. He’s a former president of The Federalist Society Tampa Bay Lawyers Chapter.
“Because statements of ‘intent’ inherently are ambiguous, they result in subjective determinations based on the policy preferences of the judges. That is not an act of impartial judgment but legislating from the bench,” Allen wrote.
In other words, to interpret the U.S. Constitution objectively, don’t consider today’s societal needs or context; look at what was happening in Philadelphia in 1787, when the document was written, according to the textualists.
Ex-chief justice defends decisions
The only Florida Supreme Court member left to protect its liberal legacy is former Chief Justice Jorge Labarga, the sole moderate carryover from the pre-Scott days. Then-Republican Gov. Charlie Crist named Labarga to the high court 11 years ago and he was chief justice from 2014 to 2018.
Current Chief Justice Charles Canady, another Crist appointee, joined the court in 2008. A former Republican U.S. congressman and state legislator, Canady also served as chief justice from 2010 to 2012.
When he was part of the conservative minority, Canady sometimes opposed Labarga. By the time he succeeded Labarga for a second term on July 1, 2018, Canady had gained the clout that Labarga had lost.
Although Larbarga is considered a swing voter–neither predictably conservative nor reliably liberal–nowadays he’s often a lonely voice speaking out in dissent. Labarga is usually the 1 in 6-1 decisions from the seven justices.
Typically, Labarga dissented to a June 4 majority opinion that will keep a proposed ban on assault weapons off the November ballot. The rest of the court decided the ballot summary, as written, would mislead voters; Labarga noted that a summary is supposed to summarize, which it did.
That’s one example of how the court appears to work hand-in-hand with the conservative legislature to prevent Florida voters from changing state policies. The court is supposed to lightly review proposed ballot items for clarity and singularity, but it has exceeded those bounds.
‘This could be devastating’
The justices are using their power to allow or hinder ballot proposals based on what looks like a conservative litmus test.
One controversial citizens’ initiative ignited a backlash that’s still reverberating. In 2018 Florida voters overwhelmingly decided to restore former felons’ voting rights. Legislators responded by adding financial barriers to voting for this group. The Florida Supreme Court approved the legislation, but a federal judge rejected it.
Last month, Tallahassee U.S. District Judge Robert Hinkle agreed with the American Civil Liberties Union that the financial hurdles amount to an illegal “poll tax,” a form of voter suppression. He ordered the state to deliver a better plan to register former felons.
As if to prevent a repeat of all that turmoil, an opaque political committee called Keep Our Constitution Clean sponsored a disruptive ballot measure. It requires citizens to duplicate in two general elections the arduous process of getting any future initiative on the ballot and winning the vote.
Now, with the Florida Supreme Court’s blessing, the so-called “pass it twice” proposal is headed for the Nov. 3 ballot.
“This could be devastating,” Anjenys Gonzalez-Eilert, executive director of the government watchdog Common Cause Florida, told U.S. News & World Report. “We don’t have to elect our president twice. We don’t have to elect our senator twice. What do we have to elect twice?”
Labarga’s impassioned dissent
The court’s maneuvering to reach hardcore conservative goals is especially blatant in death penalty cases. With 348 inmates, Florida has the second biggest Death Row in the U.S. after California, according to the Death Penalty Information Center. Consequently, the justices spend an enormous amount of time making life-or-death decisions.
Florida was one of only three states that let judges–not jurors–act as the final arbiters of death sentences. That changed in 2016, when the U.S. Supreme Court rejected the state’s capital sentencing structure in the case of Hurst v. Florida.
Whether conservatives liked it or not, Florida was going to shed its “outlier” status. The Florida Supreme Court told the legislature to give jurors more power in capital sentencing. Lawmakers passed one makeover, which the court rejected, before successfully revising the procedure in 2017.
Then, this January, the Florida Supreme Court reversed itself – like the Hurst decisions never happened. Four years earlier, a much more liberal court had basically run amok, the justices suggested in an unsigned opinion.
“It is no small matter for one Court to conclude that a predecessor Court has clearly erred,” the majority wrote. But things happen.
“Without legal justification, this Court used Hurst v. Florida … as an occasion to disregard decades of settled Supreme Court and Florida precedent. Under these circumstances, it would be unreasonable for us not to recede from Hurst v. State’s erroneous holdings,” the court decided. (The two related cases went by Hurst v. Florida in the U.S. Supreme Court and Hurst v. State in the Florida Supreme Court.)
The opinion drew an impassioned response from Labarga. “The majority removes an important safeguard for ensuring that the death penalty is only applied to the most aggravated and least mitigated of murders,” he wrote. “In the strongest possible terms, I dissent.”
A return to ‘Animal House’
Last year, a conservative justice called out his colleagues for playing with a stacked deck. Justice Robert Luck argued with his fellow Scott appointee, Justice Alan Lawson, about a new standard for admitting expert trial testimony.
How did the court manage to veer away from long-standing precedent to make the switch? The justices could adopt the new provision because, well, they can, according to Lawson’s opinion.
Labarga opposed the new rule. It curbs the right to a jury trial by letting judges, instead of juries, have the last word on expert testimony, he wrote in a dissent.
In a separate dissent, Luck objected to the way the rule was crafted. He name-checked the fictional Faber College from the 1978 movie “National Lampoon’s Animal House.”
Faber officials conjured up a rule so they could put troublesome students on “double-secret probation.” And Luck strongly implied that Lawson’s rationale reminded him of that sleazy trick.
“We can’t ignore the process altogether and do whatever we want, whenever we want to do it, as the [Lawson] concurring opinion suggests,” Luck wrote.
The revisionist view of Hamilton
For his part, Lawson gently scolded Luck about belittling the court’s power to make its own rules.
Lawson won that round and outlasted Luck on the high court. In December, Luck joined the U.S. Court of Appeals for the 11th Circuit in Atlanta.
His replacement is Renatha Francis, a neophyte circuit court judge from Palm Beach County. DeSantis compared Francis to Alexander Hamilton when he introduced her on May 26. She is to be sworn in September 24.
Like Hamilton, she believes “the judiciary lacks authority to indulge its legislative preferences,” the governor declared. He was using code for the conservative tenet that good judges never question the legislature.
But DeSantis was marketing a narrow vision of American history: Hamilton helped craft a sweeping plan that has three co-equal government branches checking and balancing each other.
And Hamilton wasn’t big on bowing to authority. Any theater-goer knows that.