The Florida Supreme Court recently ruled that the next governor of Florida would have the opportunity to appoint three new justices to the Florida Supreme Court. This ruling significantly raises the stakes of the upcoming gubernatorial race between Republican Rep. Ron DeSantis and Democratic Tallahassee Mayor Andrew Gillum. Specifically, it gives Floridians the opportunity to determine the direction of the state’s highest court.
The election is vital for Floridians, whose choices will determine whether the Supreme Court will consist of conservative justices who strictly follow the Constitution and the law or activist justices who would legislate from the bench.
Florida’s Supreme Court has put its stamp on a variety of important issues. While the court, in theory, is expected to be impartial, partisanship inevitably rears its ugly head. According to Aubrey Jewett, a political scientist at the University of Central Florida, “They’re technically nonpartisan justices, but the fact remains that there has been a 5-2, and more recently a 4-3, bloc of progressive and liberal justices that have frequently been the only check or balance to the Republican legislature or the Republican executive.”
Republican Party of Florida Chairman Blaise Ingoglia stated: "Andrew Gillum would appoint radical, activist justices who would legislate from the bench and work to eliminate school choice, erode pro-life principles, and impose big-government ideology on our state. Ron DeSantis is an attorney, Iraq veteran, and former Navy JAG officer who knows the importance of appointing strong constitutionalists to the bench.”
Moreover, Gillum’s positions on many of the important issues (for Floridians) provide a glimpse as to the types of justices that he would likely appoint. According to the National Review, Gillum, the Democratic candidate for Florida governor, “is campaigning as a member of the Sanders–Ocasio-Cortez wing of the party.” Gillum opposes gun rights and supports a ban on “assault weapons” and measures to crack down on private gun sales. He has also endorsed proposals to restrict the Second Amendment rights of people who have not been convicted of crimes.
In addition, he wants more government (state and federal) involvement with respect to healthcare, supports a “Medicare for all” plan, and says he would expand Medicaid in Florida. Moreover, “he wants to abolish ICE, raise the minimum wage to $15, pass single-payer health care, and increase taxes across the board.”
The consequences associated with judicial activism are significant. In a recent speech before supporters of the Heritage Foundation, Attorney General Jeff Sessions strongly condemned judicial activism, calling it “fundamentally undemocratic.”
"You're all probably familiar with the term judicial activism," Session said. "An activist judge has traditionally been defined one who goes beyond the law in a given case and injects his or her personal opinion or policy preferences for judicial rulings. This improperly takes the policy making prerogative away from the democratically accountable branches. One argument for activism was advocated openly by President Obama — he said it repeatedly. He declared his nominees must judge with empathy, it's a seductive argument, politically it sounds good, but whatever empathy is, it's more akin to emotion, bias, politics, not law. "
"Such an approach is a direct threat to law," Sessions contended. "And since law and law alone protects our liberties, it's a threat to our freedom and the democratic process."
"In effect," Sessions has also said, "activist advocates want judges who will do for them what they have been unable to achieve at the ballot box."
Unfortunately, the state of Florida is no stranger to judicial activism. "Nowhere is the pattern of judicial activism more prevalent than in the State of Florida," writes Colleen Pero, an attorney and legal analyst specializing in reviewing state supreme court opinions, in an American Justice Partnership Report. To support this assertion, Pero references numerous Florida Supreme Court cases where judicial activism allegedly played a role in the court’s ultimate decision. These cases involve a variety of legal issues and are instructive as to what can happen when judges allow their personal opinions and/or policy preferences to dictate the way they rule (as opposed to the law).
The people of Florida have a very important decision to make when they elect Florida’s new governor in November. On the one hand, they can elect a governor who will appoint justices that will strictly abide by the Constitution and the law. The alternative provides for a governor who will likely appoint activist judges who will legislate from the bench.
Elad Hakim is a writer and a practicing attorney in Florida.