On Thursday, the Florida Supreme Court’s new conservative majority allowed the state to resume executing individuals who may be intellectually disabled, shredding a precedent no one asked them to destroy. Its 4–1 decision carves a loophole in state law and grants Florida the authority to kill disabled prisoners who were sentenced under an unconstitutional law. Remarkably, Florida did not even ask the court to overturn this precedent; the conservative justices did so on their own initiative. That astounding breach of judicial protocol has sent shockwaves through the state, further demonstrating that Florida’s high court has embarked upon a political agenda that is far removed from anything that might plausibly be called judging.
The court’s decision in Phillips v. State essentially revives an unconstitutional Florida law. In 2002, the U.S. Supreme Court ruled that states may not execute “mentally retarded offenders.” Killing people with mental “deficiencies,” the court explained, is a cruel and unusual punishment forbidden by the Eighth Amendment, because these individuals’ “cognitive and behavioral impairments” render them less culpable. Florida, however, continued to sentence intellectually disabled people to death, getting around SCOTUS by imposing a rigid test: Any individual who scores above 70 on an IQ test is, by definition, not intellectually disabled. This rule flies in the face of the scientific consensus, and in 2014’s Hall v. Florida, the U.S. Supreme Court struck it down.
Frank Walls was sentenced to death before Hall and denied an opportunity to prove an intellectual disability because he scored an IQ of 72, just above the cutoff. He asked the Florida Supreme Court to apply Hall retroactively, which would give him a new chance to demonstrate his disability at an evidentiary hearing. The court granted his request in 2016’s Walls v. State. It applied its test for retroactivity, which asks whether a constitutional ruling “constitutes a development of fundamental significance.” A ruling meets this test if it places “beyond the authority of the state” the power to “impose certain penalties.” The court easily found that Hall satisfies that standard, because it revoked Florida’s ability to impose death on defendants who are intellectually disabled but still score an IQ above 70.
Since then, the makeup of the court has changed dramatically. Four liberal justices were forced to retire due to age, allowing Republican Govs. Rick Scott and Ron DeSantis to pick conservative successors. Two of DeSantis’ appointees have already been elevated to the federal bench, and the governor has illegally refused to name their replacements. So, today, the Florida Supreme Court has four conservatives, one moderate, and two vacancies. There are no female justices.
One might expect a short-staffed court to display a modicum of modesty before ripping up decades of precedent. This one has not. Its conservative majority quickly got to work overturning progressive decisions they disliked, with a special focus on death jurisprudence. In January, the court let judges impose capital punishment without the unanimous recommendation of a jury, reversing a 2016 precedent. While doing so, the majority gave itself new powers to overturn past decisions with no special justification. Just last week, the same four justices sharply diminished the level of scrutiny applied to criminal convictions that rest solely on circumstantial evidence, even in capital cases.
The court continued this campaign on Thursday by overturning Walls, the 2016 decision applying Hall retroactively. It used a post-conviction appeal from an intellectually disabled death row inmate, Harry Phillips, as a vehicle for this abrupt reversal. The four conservative justices declared that Hall “merely more precisely defined the procedure” to determine when a capital defendant is intellectually disabled. They asserted that the “categorical prohibition on executing the intellectually disabled was not expanded by Hall.” And they dismissed Hall as nothing more than an “evolutionary refinement” in the law, not a ruling of “fundamental significance.”
These claims are not just dishonest; they are false. In Hall, SCOTUS declared that “Florida’s law contravenes our Nation’s commitment to dignity.” Its sweeping decision condemned Florida’s rule as a frontal assault on the Eighth Amendment. Hall was not a “refinement” of the law. It placed “beyond the authority of the state” the authority to execute a new class of people: people who score an IQ above 70 but are still intellectually disabled. Any principled interpretation of precedent requires its retroactive application in Florida.
What’s arguably more disturbing than the court’s decision is the way it reached its conclusions. As SCOTUS recently reminded us, courts are only supposed to decide questions presented by the parties before them; they may not “sally forth each day looking for wrongs to right.” Traditionally, a court will only overturn precedent if a party asks it to. Occasionally, a court may decide, on its own, that it’s time to reconsider a precedent. When that happens, the court typically orders further briefing on the matter, as SCOTUS did in Citizens United. The judiciary is called “the least dangerous branch” in part because of this passivity: Courts cannot insert themselves into a political dispute, but must wait for controversies to come before them.
The Florida Supreme Court broke all those rules on Thursday. Florida didn’t ask the court to overturn Walls. The justices did not order more briefing on the issue. Instead, they took it upon themselves to kill off an earlier decision simply because they didn’t agree with it. A court that spontaneously seeks out and repeals old laws it dislikes is not really a court. It is a legislature. There may be no clearer example of unalloyed, unapologetic judicial activism.
These developments are specific to Florida, but they have national resonance. President Donald Trump has stacked the federal judiciary with conservatives who share the judicial philosophy of the Florida Supreme Court’s majority. Many of them are already gunning for liberal precedents, including Roe v. Wade. These judges have decided that time-honored principles of judicial restraint do not apply to them. They believe they have a mandate to bend the law as far to the right as possible, as quickly as possible—no matter how many laws, precedents, and human lives they trample along the way.
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