Bench Memos

Law & the Courts

Transforming the Florida Supreme Court

Despite the fact that Florida hasn’t elected a Democratic governor since 1994, a liberal majority continued to dominate the state supreme court through 2018. But that seems very likely to change very soon.

Three liberal Florida justices—Barbara Pariente, Fred Lewis, and Peggy Quince—have just faced mandatory retirement on account of age, so newly elected governor Ron DeSantis came into office this week with three vacancies to fill. If he fills them well, he will swing what had recently been a 4-3 liberal majority—and before Governor Rick Scott’s appointment of Alan Lawson two years ago, a starker 5-2 liberal majority—into a 6-1 conservative majority.

All signs look strong. In his inaugural address on Tuesday, Governor DeSantis denounced judges who “expand their power beyond proper constitutional bounds and substitute legislative will for dispassionate legal judgment,” and he promised that the Florida judiciary’s history of “judicial activism ends, right here and right now”:

I also understand that the role of the judiciary, while important, must be limited. It is a self-evident truth that in our constitutional system, courts lack the authority to legislate, but for far too long Florida has seen judges expand their power beyond proper constitutional bounds and substitute legislative will for dispassionate legal judgment, damaging the constitutional separation of powers, reducing the power of the people and eroding individual liberty.

To my fellow Floridians, I say to you: judicial activism ends, right here and right now. I will only appoint judges who understand the proper role of the courts is to apply the law and Constitution as written, not to legislate from the bench. The Constitution, not the judiciary, is supreme.

On Wednesday, DeSantis made his first appointment, placing state appellate judge Barbara Lagoa on the supreme court. (Under the Florida constitution, the governor has the power of direct appointment; no confirmation by a legislative body is required.) Lagoa, age 52, is the first Cuban-American woman, and the first Hispanic woman, to serve on that court. Jeb Bush appointed her to the appellate court in 2006.

I am not familiar with Lagoa’s judicial record, but a conservative Florida lawyer whose judgment I trust and who is very familiar with her record expects her to be excellent.

I’m looking forward to the next two picks.

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