From the Washington Post:
For decades, the ambitions of Florida’s Republican governors were stymied by the liberal-leaning state Supreme Court.
That is, until Ron DeSantis was elected.
The court let him erase a congressional district with a large Black population. It opened the door to a law making it easier to impose the death penalty. Now, it’s poised to rule on the governor’s plan to outlaw most abortions in the third-most-populous state.
The hard-right turn was by design. DeSantis seized on the unusual retirement of three liberal justices at once to quickly remake the court. He did so with the help of a secretive judicial panel led by Leonard Leo — the key architect of the U.S. Supreme Court’s conservative majority — that quietly vetted judicial nominees in an Orlando conference room three weeks before the governor’s inauguration.
Let me stop the Post right there. The primary reason that Florida now has a conservative-leaning state supreme court and not a “liberal-leaning state Supreme Court” is not that Governor DeSantis has done anything nefarious, but that the judges on the state supreme court are chosen by the elected branches, and the Republican Party has been in control of those elected branches for nearly three decades straight. It is true that “DeSantis has picked five of the seven justices currently on the court.” But that’s a quirk of history, not a bucking of the larger political trends. The GOP has controlled Florida’s governorship without interruption for the last 23 years. It has controlled the state’s senate without interruption for the last 28 years, and the house without interruption for the last 26. DeSantis won reelection in 2022 by the biggest margin in four decades. Why, given these facts, would anyone expect Florida to have a “liberal-leaning state Supreme Court” in perpetuity?
The Post’s story features a quote from a former state supreme court spokesman who complains that “the result is a court that lacks diversity of viewpoints, and that’s very troubling in terms of checks and balances.” But this is transparent nonsense. As the Post notes elsewhere, DeSantis has done exactly what progressives insist that they want, and “touted the gender and ethnic makeup of his judicial appointments, which have included two Hispanic men, two Hispanic women and one Black woman.” That the same people are still complaining about his picks is illustrative of what we all already knew: that “diversity” only counts when the “diverse” are political progressives. When they’re not, they’re traitors or Uncle Toms or shadowy political operatives who are declining to do their real job and “stymie” the elected officials whom progressives dislike.
As for “checks and balances”? Those are crucial, of course. But they are provided by judges who follow the law as it is written, not by judges who disagree with each other as to how they should invent meaning from whole cloth. As the Post acknowledges, DeSantis has been open about his judicial philosophy since he first arrived on the scene:
Leo and the panel asked the finalists about interpreting the Constitution according to its original intent and without applying more-current social, political or cultural lenses, as the Federalist Society advocates, according to the people familiar with the process interviewed by The Post. Those principles of “originalism” and “textualism” have been cited by Federalist Society judges in courts across the country to strike down legal protections for women, racial and ethnic minorities, and the LGBTQ community.
“The reason why I think that’s the right way to do it is because you have to have some objective measure to go by,” DeSantis said in a Federalist Society speech in late 2019. “It can’t just be flying off the seat of your pants philosophizing and imposing whatever idiosyncratic views you have on society under the guise of constitutional interpretation.”
This is obviously the right approach, and I am suspicious of anyone who thinks otherwise. Here, as elsewhere, it would save us a whole bunch of time if the people who oppose judges who interpret the law “according to its original intent and without applying more-current social, political or cultural lenses” would admit as much. Rejecting judges who engage in “off the seat of [their] pants philosophizing and imposing whatever idiosyncratic views [they] have on society” is not secretive or underhanded or “hard-right”; it is imperative. The burden of proof is not on DeSantis for preferring such a judiciary; it’s on the many people who are criticizing him for being brazen enough to demand the opposite. For a long, long time, Florida’s supreme court has been full of unmoored political activists who have abused their position. Now, it is not. That’s an improvement, not a crisis.