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Alex Villalobos
Democracy at Stake
Villalobos: Beware the Game of “Constitutional Chicken”

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.

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by Dr. Radut.