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Is there an assault on the independence of Florida's courts or are state judges engaged in judicial activism?
Rich Bard's picture
Rich Bard
The Florida Supreme Court has become a focus of debate as three justices -- R. Fred Lewis, Barbara Pariente and Peggy Quince – will be on the November ballot for a merit retention vote. Restore Justice 2012 says “the Florida State Supreme Court has taken upon itself to decide matters lawfully left to voters to decide.” Democracy at Stake says it is “no exaggeration to say the future of democracy is at stake when politicians seek to seize control over our courts.”
Alex Villalobos
President of Democracy at Stake, a Nonprofit Organization Protecting Fair and Impartial Courts for Florida

The image of the blindfolded Lady Justice holding her scales represents more than an ideal. It communicates the guarantees that are critical to democracy:

Justice is fair – the scales held high, in plain sight.

Justice is impartial – her eyes wrapped tight, disallowing bias.

Justice is certain – a sword at the ready, ensuring true justice to all.

Fair and impartial administration of justice is a difficult and delicate balancing act. It is one that the seven members of the Florida Supreme Court perform admirably day in and day out. Increasingly it’s a job that requires standing up to politicians and government overreach.

In just the past few months, judges have overturned laws privatizing prisons,requiring drug testing for welfare recipients, and banning physicians from asking patients gun-related questions. They have forced Senate leaders to go back to the drawing board when their new maps for legislative districts fell short of the new constitutional directive from voters. Even more rulings are forthcoming on challenges to new laws the Legislature passed last year. And one thing is sure: We can count on the politicians to be outraged if they wind up on the losing side.

Don’t be fooled. If politicians are tired of seeing their legislation thrown out by the court, there is an easy fix. They can stop thumbing their noses at the Florida Constitution. It’s not a matter of misunderstanding what is or is not constitutional. Many just don’t seem to care. Time and again in legislative hearings the question about the constitutionality of proposals is met with the same pat answer – “that’s for the court to decide.”

What is the point of pushing through laws that are almost certain to fail the constitutional test? For politicians it’s a win-win-win. They get to play the role of hero to their partisan political base, appease special interests to keep campaign donations rolling in – and then cast the court as the villain when it does just exactly what they expect it to do: uphold the constitution. 

This game of “constitutional chicken” is disturbing but relatively harmless as long as the court refuses to blink. Our Florida Supreme Court justices have demonstrated the ability to stand up to government overreach and enforce the limits that the people of Florida have placed on our elected leaders. Increasingly brazen intimidation tactics have failed to tip the scales of justice in the politicians’ favor. But politicians have not given up. The latest crop of constitutionally flawed legislation addresses politically charged issues ideal for stirring partisan outrage – an outrage that is likely to be visited on any justices of the Supreme Court who rules against them.

Florida enacted reforms years ago to reduce the influence of money and politics on Florida’s courts. Those reforms have served Florida well. Whether we agree or disagree with any individual court rulings, we are all well served by judges who make decisions based on the rule of law. When politicians of any party seek to seize control over our courts, it is no exaggeration to say that the future of democracy is at stake.

Politics have no place in our courtrooms. When all else fails, we need to be able to turn to the courts with confidence that rulings will be based on fair and impartial consideration of the merits, and equal and consistent application of the law. If we are lured into evaluating our judges or justices based on the political popularity of individual rulings rather than a fair and impartial application of the law, we all lose.

Former state Sen. Alex Villalobos was Majority Leader and Rules Chair during his tenure in the Florida Senate.


Jesse Phillips
President of Restore Justice, Inc., Which Seeks to Educate Voters on the Records of the Florida Supreme Court Justices

If you asked 10 people, “Do you support judicial independence?”, 10 would probably say “yes.” If you then asked those people to define judicial independence, you would probably get 10 different answers.
Our founders debated our court system. They discussed whether the court should be its own branch or a subset of the legislature. Some argued for a government with just two branches: executive and legislative. Under this model, the legislature would form courts to rule when disputes over its laws arise.
The great Enlightenment philosopher Montesquieu, however, thought differently. He had proposed a form of government with three separate branches. This idea appealed to John Adams, who tweaked his theory and, with the help of James Madison in the Federalist No. 47, the argument for an independent judiciary won the day.
The founders’ understanding of judicial independence meant each branch would have different roles and limited power. As Madison wrote, “The judges can exercise no executive prerogative … nor any legislative function.” This was an important limit, because “if the power of judging be not separated from the legislative and executive powers," according to Montesquieu, “there can be no liberty.”
As I have traveled throughout Florida educating voters on the records of Florida’s Supreme Court justices, part of the Restore Justice 2012 campaign, people have asked, “Do you think judicial activism is a problem, or is there an assault on the independence of Florida’s courts?" My answer is yes and yes. Judges have engaged in judicial activism, thereby threatening the court’s independence.
I know that those who oppose our voter education are quick to say I am compromising the court’s independence. But what do they mean by this? Clearly they can’t mean that I’m forcing judges to legislate or issue executive orders. They must have something else in mind when they speak of judicial independence.
Citizens educating themselves and voting based on a judge’s record is a threat only if you believe the courts should be independent of people’s will. This is a different form of independence than what Madison advocated. He argued that the courts were independent of the other two branches of government, not of voters’ will.
Here's the bottom line: No branch of government should be independent of our will. Do you want a court that makes decisions irrespective of your will? Not if self-government matters.
We have a voice in our court system. Nationally, we choose the president and members of the U.S. Senate and give them the ability to nominate and confirm judges. In Florida we choose whether to keep judges based on their job performance -– what we call merit retention.
You and I can’t compromise judicial independence -- unless of course we’re judges. The court, however, has weakened its independence by adopting legislative power, enacting policies not vetted by accountable, elected officials that go beyond what the Florida Constitution says.
We are heightening public awareness of our court system, and it just might cure this tendency. Accountable judges may think twice before interfering with the legitimate business of the people that we actually elect.
This is how we are restoring judicial independence. You’re going to make an informed decision and we’ll end up with better judges less willing to rewrite laws and a court that is more independent. The only thing we’ll compromise is judicial autonomy from the voters’ will. Of course this should be compromised because it's dangerous.

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FloridaVoices User Comments

If the activism of the Florida Supreme Court is not checked then we are a state governed by four people who are the majority vote, four out of seven Justices, on the Florida Supreme Court. Governance by four Justices means the will of the people or they're chosen representatives no longer matters. We are fortunate to have a method to correct this situation, lets exercise this method and vote NO on the retention of Pariente, Quince, and Lewis.

by Dr. Radut.