By Noreen Marcus,FloridaBulldog.org
Later this year Florida Supreme Court Chief Justice Charles Canady may be living with a state legislator, his wife Jennifer Canady, a Republican who is campaigning to represent Lakeland in the state House.
If she wins, the court that her husband leads may someday pass judgment on a law she sponsored. So would Canady recuse himself, or participate in the case anyway?
He should stand down to avoid raising conflict-of-interest concerns, but he doesn’t have to, said Peter Joy, a judicial ethics professor from Washington University School of Law in St. Louis.
“It would be up to Canady to exercise his own judgment,” Joy said.
Still, it wouldn’t matter if the former Republican congressman tried to distance himself from the Republican-run Legislature, according to Robert Jarvis, a law professor at Nova Southeastern University in Davie.
“I don’t think there’s any chance that the Florida Supreme Court will strike down anything the Florida Legislature comes up with because they’re completely simpatico,” he said.
CANADY A FEDERALIST SOCIETY FAVORITE
“Canady is a politico who came to the court fairly late in his career, a very skilled politician who was successful on the state level and in Congress,” Jarvis said. “He is who he is, there’s no guessing about where he stands. He’s a hardcore right-wing conservative justice.”
Canady “politely declined” to be interviewed for this profile through court spokesman Paul Flemming.
Even his critics say Canady, 67, is smart, pragmatic and personable. They commend him for effectively overseeing the nightmarish logistics of keeping a court system on track during a pandemic.
Nearing the end of his second two-year rotation as chief justice, Canady is at the top of his profession and clearly savoring his position.
He’s a Yale Law-educated darling of the far-right Federalist Society whom Donald Trump briefly listed as a U.S. Supreme Court contender when he was president.
COURT SAYS NO TO DESANTIS
Canady promotes an ambitious conservative agenda. In a dispute between a business and an injured party or group, he’s a predictable vote for the business. He leads a bullet-proof majority of like-minded colleagues on the court.
He’s unapologetic about his judicial philosophy. Canady has not voiced the same viewpoint as Justice Amy Coney Barrett, who belittled the idea that the U.S. Supreme Court is a “bunch of partisan hacks” in a widely reported speech.
The Florida Supreme Court is extremely deferential to the Legislature and Gov. Ron DeSantis, but there are limits as to what it will accept.
When DeSantis nominated Palm Beach Circuit Court Judge Renatha Francis to join the court and her paper-thin resume provoked a backlash, the justices forced the governor to find someone else.
“The court drew that line and I give them a tremendous amount of credit for that,” said West Palm Beach attorney Michael Gelfand.
CRIST PUT CANADY ON HIGH COURT
The judiciary is Canady’s second vocation. The Lakeland native served in the Florida Legislature for six years and then in Congress for four terms before returning to Florida, where he was Gov. Jeb Bush’s general counsel.
Bush appointed Canady to the Second District Court of Appeal in 2002. Six years later Gov. Charlie Crist promoted him to the Supreme Court.
It’s practically a lifetime appointment. Justices run for retention every six years, but they have never been voted off the court. They don’t have to retire until they turn 75.
They can be impeached, but that was just a threat even when more than half the court resigned during an extraordinary corruption scandal in the early 1970s. Since then no Supreme Court justice has faltered because of a removal campaign.
By way of a very general job description, the justices weigh laws and injurious actions against constitutional and statutory commands and previous rulings, or precedents. They can direct legislators to revise laws or even to change redistricting maps, as the court did most recently in 2015.
CANADY COURT TO RIGHT OF U.S. SUPREMES
They work to ensure that lower courts apply civil and criminal laws uniformly so that litigants can count on getting the same result in any forum.
Much of the high court’s time is devoted to two difficult and sensitive areas: capital cases and attorney regulation and discipline. The Supreme Court is almost always the last stop for Death Row inmates; lawyers facing discipline can save or lose careers there.
Though a nominating commission assembles and vets Supreme Court candidates, the governor gets to choose. DeSantis and former Gov. Rick Scott have used this power to transform what was a largely liberal institution into one that is more consistently conservative than the U.S. Supreme Court.
When the only remaining moderate, Justice Jorge Labarga, dissents from a decision, he usually stands alone. Recently he criticized his six colleagues for making “a series of drastic changes in civil, criminal and rulemaking contexts.”
CANADY WAS CLINTON PROSECUTOR
Canady, who started out as a “conservative Democrat” and switched parties during his state House days, took part in some blistering partisan battles before retiring from his political career.
In the late 1990s he was one of a dozen U.S. House managers who prosecuted President Bill Clinton at his Senate impeachment trial. Clinton was acquitted.
U.S. Rep. Canady is credited with—or blamed for, depending on one’s viewpoint—coining the term “partial-birth abortion,” which has tormented the pro-choice movement ever since.
That morsel from Canady’s past may bubble up when the court ponders an inevitable assault on the restrictive abortion measure that Republican state legislators are busy writing this session.
WILL CANADY RECUSE FOR ABORTION LAW?
DeSantis is expected to sign the Texas-style bill into law. Then pro-choice groups are expected to mount a legal challenge that will land in the Supreme Court.
Given Canady’s history of abortion opposition, a litigant could argue he prejudged the Florida law and call for his recusal, Miami legal ethics consultant Jan Jacobowitz explained.
She declined to predict whether Canady would step aside. “I just think it’s almost not fair to second guess what a judge might do,” Jacobowitz said.
“He was on the Judiciary Committee in Congress. He’s a bright guy, he’s well aware of judicial ethics and separation of powers. So I wouldn’t presume that he would do anything inappropriate,” she said.
Critics of Canady and his fellow conservatives identify two trends – their selective embrace of precedent and their overzealous use of the court’s rulemaking authority.
DEATH PENALTY LAW CHANGES WITH COURT
The critics say these efforts, among others, show that the justices are pursuing regressive political goals. And that over time, this will destroy public confidence in a fair and impartial justice system.
“I have never seen a court reverse its prior decisions in such a political way and such a disingenuous way,” Stephen Harper has said. Harper is an emeritus professor at Florida International University College of Law.
A series of death penalty cases that spanned radical shifts in the court’s makeup and direction ended with the conservatives trashing a hugely important precedent.
In 2016, the Florida Supreme Court bowed to the U.S. Supreme Court by ruling that a jury must vote unanimously for the death penalty before it can be activated.
The mostly liberal court voted 5-2 in the case of Timothy Lee Hurst, who had been convicted of killing Cynthia Harrison, the assistant manager of a Popeye’s restaurant, during a 1998 robbery. The two dissenters were Canady and Justice Ricky Polston.
ALONE, LABARGA FIGHTS BACK
Canady objected that the majority went further than the D.C. justices intended, “unnecessarily disrupting” Florida’s death penalty scheme.
Fast forward to January 2020, when the Canady court ruled in a similar capital case. The justices not only reversed the court’s own 2016 decision, but scolded the earlier panel for ignoring “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 unsigned opinion says.
Labarga, a member of the 2016 majority, shot back. “In the strongest possible terms, I dissent,” he wrote.
“The majority removes an important safeguard for ensuring that the death penalty is only applied to the most aggravated and least mitigated of murders,” his dissent says.
USING RULES TO FOMENT CHANGE
Edith Georgi said at the time that she didn’t know how to explain the court’s zigzags to her class on the death penalty at the University of Miami School of Law.
Georgi, a retired Miami-Dade County public defender, said her reaction to the 2016 Hurst decision was, “Wow, we finally came into the 21st Century and got in line with the rest of the country. Now I tell my students, in January we went backwards.”
The court under Canady has used its rulemaking power the same way presidents use executive orders–unilaterally and without openly gathering input.
Presidents issue executive orders to sidestep Congress. The Canady court seems to be deploying rules to avoid static from lawyers and the public.
In one example, last year the court decreed that Florida lawyers will be penalized for taking American Bar Association-sponsored refresher courses. The reason: The ABA requires diversity in the panels that teach these courses, and the court equates diversity with illegal quotas.
A NEED FOR SPEEDY COURSE CORRECTION
The justices imposed the penalty in a rule change they rammed through without pausing for input from lawyers. Taking the time to hear from Bar members had been standard practice until recently.
Nor did the justices wait for someone to complain about the diversity guideline, which would have triggered a proceeding with evidence and arguments for and against the hot-button issue of diversity. Another standard practice was ignored.
The resulting outrage forced the court to go through the motions of accepting comments after the fact. Then in December the justices “reconsidered” a slightly modified version of the rule and approved it all over again.
They must be using this streamlined process because they’re impatient for change, according to a lawyer who practices in the Supreme Court and declined to be publicly identified. “It’s harder to overrule precedent and you have to wait for a case to come along, which apparently they don’t want to do,” the lawyer said.
Jarvis of Nova said he’s not surprised that Canady is moving swiftly to implement his goals. “I think if he was being honest he would say the work he started in the Florida Legislature he continued in Congress and on the court, because he sees all these institutions as mere political entities to be used to achieve his agenda.
“That is not what we should have in judges,” Jarvis said, “but that is what we have.”