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Orlando Sentinel

Florida Supreme Court poised for conservative makeover

Florida Supreme Court

Florida Supreme Court (Gray Rohrer)

By Gray Rohrer - Tallahassee Bureau
January 7, 2019

TALLAHASSEE – The Florida Supreme Court is about to undergo a sweeping change that could lead to liberal rulings on issues ranging from abortion to business regulations and protections for workers to gun rights being overturned.

Justices Barbara Pariente, Fred Lewis and Peggy Quince comprise three votes in the 4-3 liberal majority on the court, but must leave office by Tuesday because of a requirement in the state constitution that justices leave the bench when they complete a six-year term after turning 70.

The trio has often decided cases that went against the GOP-controlled Legislature, including opinions that junked congressional and state Senate redistricting maps; nixed a law capping attorneys’ fees in workers compensation cases; upheld the state’s ban on carrying firearms openly in public and blocked a 24-hour waiting period requirement to get an abortion.

Pariente and Lewis also often wrote cutting rhetorical barbs echoing the clashes of the harshly divided U.S. Supreme Court and the late Justice Antonin Scalia.

In an opinion scolding a dissent from conservative Justice Charles Canady, Pariente sarcastically wrote that she was thankful he didn’t accuse her of “jiggery-pokery,” a phrase coined by Scalia in his dissent to a ruling upholding the Affordable Care Act. In a recent dissent involving a case surrounding Gov. Rick Scott’s judicial appointment powers, Lewis called the majority opinion in favor of Scott a “sham” and a “travesty” in a “bizarro world.”

They were also the last remaining justices on the court who were part of the decision to order a recount in the 2000 presidential election between George W. Bush and Al Gore, later overturned by the U.S. Supreme Court.

Conservatives are anticipating a sea change in the outcome of cases. In an op-ed for the Tallahassee Democrat, DeSantis stated he will appoint justices who will “be willing to reverse bad precedent and not legislate from the bench.”

Laws passed by Republicans to keep down expenses related to workers compensation, medical malpractice and other insurance claims have been undermined or thrown out completely by the state’s high court. Business groups that have long pushed for tort reform want to see those rulings reversed.

“The business community is looking forward to textualists being appointed to the Florida Supreme Court, justices who will say what the law is, not what it should be,” said William Large, president of the Florida Justice Reform Institute, a conservative legal group. “The business community does not want to see policymaking on the bench. Policymaking decisions should be made in the Legislature.”

Liberal groups and Democrats, long outnumbered in the Legislature and shut out of the Governor’s mansion for the last 20 years, are bracing for the removal of their last line of defense to halt GOP laws.

“We need a check and we need other branches of government to keep other branches in line,” said Rep. Carlos Guillermo Smith, D-Orlando. “If we have a bunch of other people who look the same and believe in the same thing in the Florida Supreme Court then it’s just going to be right-wing government gone wild.”

The lack of diversity throughout the court system has been an ongoing critique by black lawmakers of Gov. Rick Scott. With the retirement of Quince, the court is likely to have no black justices for the first time in 40 years.

The Judicial Nominating Commission, made up of Scott appointees, didn’t put forward any African-American nominees, so DeSantis won’t have the option of choosing a black justice. Still, black lawmakers have called on him to reject the slate of nominees so an African-American is included.

“Any decision he makes should be best for the good of the state of Florida and if that means he needs to delay if he can then he should,” said Rep. Bruce Antone, D-Orlando, chairman of the Black Legislative Caucus.

The Florida Supreme Court has already delayed hearing oral arguments in December and January because of the anticipated turnover. The court of seven justices requires a minimum of five to hear cases and at least four to form a majority opinion. There is a process for the chief justice to appoint temporary associate justices to hear cases, but such a move will only be needed if DeSantis takes a lengthy period of time to name his appointees.

In his op-ed, DeSantis said he expects to make at least one appointment this week.

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