The future of the Florida Supreme Court is intertwined with the outcome of this fall’s race for governor.
At stake are the appointment of replacements for justices Barbara Pariente, R. Fred Lewis and Peggy Quince, who are leaving the seven-member court in early January because they have reached a mandatory retirement age.
After a long-running legal dispute, the Supreme Court ruled this month that the next governor, who takes office in early January, has the authority to make those appointments.
If Republican Ron DeSantis, a former congressman from Ponte Vedra Beach, wins the Nov. 6 election, he has said he will appoint three conservative justices. That would wipe out what is widely viewed as a current 4-3 liberal majority, which includes Pariente, Lewis and Quince.
If Democrat Andrew Gillum, the Tallahassee mayor, is elected, he is likely to try to shift the appointments more to the center or left, although his ability may be hindered by a nominating process that favors the selection of conservative judges.
In any event, both sides agree that the winner of the governor’s race will have a significant impact on the Supreme Court.
“You could see a monumental transformation or shift in the ideology and makeup of the court if Ron DeSantis appoints the three replacements,” said state Sen. Gary Farmer, a Fort Lauderdale Democrat and veteran trial lawyer.
Republican control of the governor’s office and the Legislature for the past 20 years has led to the enactment of “extreme policies,” Farmer said.
“The only thing, frankly, that has kept the balance and protected the little guy and little gal in the state of Florida for the past two decades has been the Florida Supreme Court,” Farmer said.
If DeSantis is elected and has power to appoint the justices, Farmer said it will impact a wide range of issues, including laws involving accident victims, injured workers, medical malpractice, abortion rights, public education and gun control.
“There are all kinds of areas where we need the court to be that sort of balance and make sure that things aren’t tipped too strongly or too far in favor of an extreme ideology,” he said.
If Gillum is elected, Republicans said it will lead to more “judicial activism,” with the court overstepping its role in interpreting constitutional issues and not giving enough deference to its co-equal branches of government: the Legislature and executive branch.
“We’ve had huge problems with the state Supreme Court for over 20 years. They have been judicial activists legislating from the bench, rather than applying the law and Constitution as it is actually written,” DeSantis, a Harvard-educated lawyer, told the Florida Chamber of Commerce last month.
“If the Legislature actually passes a law that conflicts with the Constitution, then it’s your duty to say so. But what you can’t do is simply try to nullify laws passed by the Legislature because you don’t agree with them politically,” DeSantis said. “You can’t use the court to be a super legislature for the Democratic Party, and that is basically what we’ve had with this current court majority.”
DeSantis said he would replace the retiring justices with “solid constitutionalists” and “end judicial activism in Florida for a generation, just like that.”
If a conservative majority emerges on the Supreme Court, the immediate question will be how swiftly the ideological bent is reflected in its decisions. To some extent, the court’s shift will be checked by precedent and past decisions under the legal doctrine of stare decisis.
“You would hope they honor existing precedent and the law and they don’t go making 180-degree changes to established law,” Farmer said. “But judges and justices can often find distinguishing factors or find that something has changed since a prior decision was made and use that for a justification to deviate from it.”
A conservative court would be more likely to uphold laws passed by a Republican-led Legislature.
It was a point made by Tom Feeney, head of Associated Industries of Florida, a business lobbying group, when Gov. Rick Scott appointed Alan Lawson, a conservative justice, to the Supreme Court in December 2016.
“We are anxious for the day that a majority of the Florida Supreme Court can restore respect for the constitutional separation of powers, including legitimate powers of the popularly elected members of the legislative and executive branches,” said Feeney, a former state House speaker and congressman.
If Gillum is elected, the question will become: What can he do to prevent a conservative majority from taking over the court?
Gillum’s efforts could be hamstrung by the fact that Scott has appointed all of the members of the Supreme Court Judicial Nominating Commission. The commission, which is going through 59 applicants for the three vacancies, will advance a certified list of court nominees for the next governor to consider for appointment.
Gillum would have to overcome a 2009 Supreme Court decision that stemmed from then-Gov. Charlie Crist’s rejection of a list of nominees for an appellate court vacancy. The Supreme Court ruled the governor does not have “the authority under the Constitution to reject the certified list and request that a new list be certified.”
But Gillum supporters cite a footnote in the decision that said it does not apply when “the selection of the nominees was tainted by impropriety or illegality.” They argue a “tainted process” would give Gillum an opening to reject the list of nominees or even the ability to replace the members of the nominating commission.
If that occurs, the resulting legal dispute will ultimately end up at the Supreme Court —- except that, as of Jan. 8, the day the new governor takes over, the court will be down to only four members.
Under the state Constitution, it takes five justices to create a quorum, and it requires a minimum of four justices to concur on an opinion.
Lawyers familiar with the appellate process said there are several options to resolve the diminished court, including a little-used procedure that would temporarily elevate a chief judge from one of the state appellate courts to create a five-member Supreme Court. Another option would be for the three retiring justices to remain on the court in a “senior status” to resolve the dispute.
In any case, Supreme Court Chief Justice Charles Canady would play a role in that decision, since the Constitution gives him “the power to assign justices or judges, including consenting retired justices or judges, to temporary duty in any court for which the judge is qualified.”