Justice ‘without sale’ or delay. In Florida? Really? | Editorial

The Florida Supreme Court building in Tallahassee. (Carline Jean / South Florida Sun Sentinel)

By Sun Sentinel Editorial Board | Sun Sentinel
UPDATED: January 10, 2025 at 10:52 AM EST

A recent Gallup poll bears some profoundly bad news.

Only 35% of Americans now profess any confidence in the nation’s courts. That’s a record low after a steep drop in just four years. It compares poorly with other industrialized nations, where majorities still approve of their judicial systems.

Gallup said the 24-point slide in public confidence since 2020 is one of the sharpest ever measured over a four-year period, exceeded only in places such as Myanmar, where a cruel military junta seized power; Venezuela, another dictatorship; and Hong Kong, after Communist China tightened its control.

The poll did not distinguish between Democratic and Republican respondents, although there were hints.

From low to lower

Public confidence was already low among people who disapproved of U.S. leadership in general; now, only 29% of them approve of the courts. Even among those who approved of leadership during the Biden area, the confidence in courts fell from 62% in 2023 to 44% in 2024.

Gallup suggested that people in both categories were responding to “something profound,” most likely the various legal cases involving President-elect Donald Trump.

MAGA world was incensed that Trump was criminally charged at all. Others were appalled — and rightly so — by the U.S. Supreme Court’s invention of criminal immunity for a president’s official actions and by U.S. District Judge Aileen Cannon in Fort Pierce, whom Trump had appointed, delaying and then dismissing the secret documents case against him.

An earlier poll had already found a deep drop in trust among Democrats after the Supreme Court repealed Roe v. Wade and set states free to ban abortion.

There’s no more worrisome trend. In any democracy, the courts are the people’s last line of defense against abuse of power by the other branches of government.

“Confidence in the rule of law is foundational to a free society,” Gallup noted. Losing it “could undermine the public’s faith in the legitimacy of important legal cases and decisions.”

The hand of DeSantis

The poll dealt only with nationwide attitudes, but it carries warning for state courts, especially Florida’s.

Gov. Ron DeSantis has packed the Florida judiciary with judges chosen for their hard-right leanings and Federalist Society credentials.

A remade Florida Supreme Court has been repealing every liberal precedent, from abortion rights to the death penalty, as cases come up (and sometimes even when they don’t).

Without prompting from the Florida Bar, and occasionally against its recommendations, the court has been chipping away at the Florida Constitution’s assurance that “justice shall be administered without sale, denial or delay.”

Rules changes imposed by the court have made it more difficult and costly — and in extreme cases, impossible — for people to win damage suits against deep-pocket corporate defendants such as the insurance and tobacco industries.

In the latest such action in December, the court voted 6-1 to implement a rule that it had already proclaimed at the request of the Florida Justice Reform Institute, whose notions of “reform” are those of Florida’s most powerful lobbies.

The rule requires litigants seeking discovery in a civil case — that is, documents or testimony before trial — to prove that the evidence sought is “proportional” to the needs of the case.

Whatever that eventually comes to mean, it certainly portends more pretrial hearings and more costs and fees that would be more burdensome to plaintiffs.

The Bar’s Civil Procedures Committee had considered and rejected the idea, which originated in the federal courts and has since been adopted by some other states.

‘Writing is on the wall’

The Florida Justice Association, representing plaintiffs’ lawyers, objected that judges in Florida carry more cases and have fewer resources than federal judges with which to confront a deluge of new pretrial quarrels.

But trial lawyers acknowledged bitterly that “the writing is on the wall already.”

Ricardo Ramirez Buxeda / Orlando Sentinel
Justice Jorge Labarga of the Florida Supreme Court.

Justice Jorge Labarga, once again a lonely dissenter, wrote that proportionality “will serve as an impediment to a justice that is timely, and it will prove to be far from cost-efficient.”

The power of discovery

Pretrial discovery is how most parties to a lawsuit get the evidence necessary to win.

Defendants complain that these are “fishing expeditions,” but often the “catch” proves the case. It’s particularly important in litigation over environmental hazards and consumer injuries.

As one national law firm tells prospective clients: “Litigators know that cases are rarely won at trial; they are won and lost on the discovery battlefield.”

Lawyers who dislike the new rule agree with Labarga that it would overburden courts and require more judges. A week later, the Supreme Court called on the Legislature to certify 48 new judges.

Regrettably, there’s no data comparable to the Gallup poll on how Floridians regard their newly reactionary judiciary. Nor do we know what Florida lawyers, the most knowledgeable audience, are thinking.

Why? Because the Bar ended its pre-election poll of lawyers’ evaluations of judges and justices facing merit retention.

The Sun Sentinel Editorial Board consists of Opinion Editor Steve Bousquet, Deputy Opinion Editor Dan Sweeney, editorial writers Pat Beall and Martin Dyckman and Executive Editor Gretchen Day-Bryant. To contact us, email at letters@sun-sentinel.com.

Originally Published: January 10, 2025 at 10:47 AM EST