Jurisprudence

Florida Republicans Are Passing Unconstitutional Laws That Threaten the State Supreme Court’s Legitimacy

Ron DeSantis standing with a beach scene on the wall behind him
Gov. Ron DeSantis at a press conference on Oct. 7, 2019, in Fort Lauderdale, Florida. Joe Raedle/Getty Images

For decades, Florida conservatives decried decisions by the Supreme Court of Florida striking down laws that violated the state constitution. Republican Gov. Ron DeSantis sounded this note in his January 2019 inaugural address, complaining that Florida “has seen judges expand their power beyond proper constitutional bounds” and promising to end “judicial activism.” DeSantis entered office at the same time that three liberal justices on the Florida Supreme Court were forced to retire due to age limits. He promptly appointed three new justices, creating, in the words of the Tampa Bay Times, “what some conservatives are celebrating as the most conservative state Supreme Court in America.” (Donald Trump later appointed two of those new justices to a federal appellate court, and DeSantis appointed two more justices.)

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As the Daytona Beach News-Journal noted, these appointments “raised expectations that an array of red-meat policies would swiftly emerge from the Republican-controlled Legislature,” including several bills that clash with precedent. While, since 2019, the Florida Supreme Court has issued 14 decisions directly or indirectly overturning prior precedents—even lowering the standard for revisiting past decisions—the court has not, so far, receded from precedent that invalidated a specific statute. The Republican Legislature, however, feels confident it will—so confident, in fact, that it has brazenly begun to pass laws that violate precedent of the Florida Supreme Court.

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In the 2019 legislative session, for example, Republicans pushed through a school voucher law creating a new program that diverts taxpayer money from public schools to private schools. The bill’s critics in the Legislature warned the voucher program is unconstitutional under a 2006 decision, Bush v. Holmes. There, the Florida Supreme Court struck down a similar school voucher program championed by then-Gov. Jeb Bush, a Republican. The majority found that the voucher program violated the state constitution’s requirement of a uniform, high-quality public education system open to all children. (When the new law passed, Bush described the decision as “very twisted” and “political.”) The Florida Constitution has not changed since 2006, but the membership of the state Supreme Court has. Republican legislators plainly believe the new majority will overrule Bush v. Holmes and greenlight their law. Civil liberties groups have not challenged the law in court.

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In the 2020 legislative session, the Legislature passed, and DeSantis signed, a bill that requires a minor seeking an abortion to obtain either her parents’ consent in most cases or a waiver from a judge. This statute is unconstitutional under a 1989 decision, In re T.W., in which the Florida Supreme Court held that the state’s interests in protecting maternal health or potential life were not compelling enough to outweigh a minor’s right to privacy. In 2003, the court reaffirmed that decision as binding precedent.

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Yet Republicans are now confident that they can ignore that precedent. In 2020, Republican state Sen. Kelli Stargel told the Florida Phoenix that “I do feel if it goes to court, that it’s different than what was passed years ago that was deemed unconstitutional. … We fixed the deficiencies that the court pointed out.” That’s false. The Legislature did not, and cannot, diminish the privacy rights laid out by the court. Stargel was more honest when she told the Florida Phoenix, “I think the facts support people who believe that [In re T.W.] was an overreach back then.” Stargel also acknowledged that the new majority might overturn the pro-choice precedent. Once again, civil liberties groups have not challenged the new law in court.

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The attack on precedent is also clear, though so far unsuccessful, in the area of “tort reform,” which often means reducing the amount of money civil plaintiffs can win in damages. Conservative lawmakers have long sought to enact this and other “reforms” to hobble civil suits. In the House in the 2019 session, state Rep. Tom Leek, a Republican, sponsored an unsuccessful bill to impose statutory limitations on the amount of damages a person can recover for pain and suffering in personal injury cases. The Florida Supreme Court held such a cap unconstitutional in Smith v. Department of Insurance in 1987. Leek said the aim of his bill was to give the state Supreme Court an opportunity to reconsider the decision in light of an alleged evolution in the law, though there does not appear to be any. (Disclosure: My practice includes the representation of plaintiffs in personal injury and medical malpractice cases.)

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More recently, in 2014 the court held in Estate of McCall v. United States that caps on noneconomic damages in wrongful death actions based on medical malpractice were unconstitutional; in 2017, it held in North Broward Hospital District v. Kalitan that caps in medical malpractice personal injury actions also were unconstitutional. Leek called these decisions “wrong” and said: “We have a new court now.” Another unsuccessful bill, sponsored by state Rep. Tommy Gregory, would have reenacted those caps. The bill as originally filed contained a paragraph attacking the decisions and stating that the reenactment was “so that the courts may reexamine the opinions in McCall and Kalitan.” As yet unsuccessful, these proposals will come up again.

We see here a Legislature unbound—passing, or considering, blatantly unconstitutional laws because it feels empowered by a court that has shown a willingness to revisit its precedent. There is an obvious danger when the Legislature passes laws that the Supreme Court has already found unconstitutional with the expectation that the court will reconsider its decisions because its membership has changed. United States Supreme Court Justice Potter Stewart once wrote in a dissent:

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A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.

By its actions and its members’ words, however, the Florida Legislature expresses its belief that the court will change the law just because of a change in its membership, and that the Legislature can enlist the court in a project to advance an ideological agenda. In fact, if the Legislature revives a dead statute and it is challenged, an appellate court will have to strike the statute down; the state constitution then requires the Supreme Court to review that decision if review is sought. It is unfair of the Legislature to put the court and its justices in that position. And the Legislature merely expressing its belief that the court will revisit its precedent because its membership has changed may erode public perceptions of the court’s legitimacy.

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Equally damaging, the Legislature thumbs its nose at the court and the court’s precedents when it revives dead statutes. Our Supreme Court has already said “what the law is” in these and other cases invalidating statutes. The Legislature effectively usurps the “judicial power” and violates Florida’s express and strict doctrine of separation of powers—especially if these laws remain in force because the Legislature’s belief the court will revisit precedent scares people from filing lawsuits to enforce the state constitution. Lawmakers should respect the independent judiciary’s role in our state government and stop its attempts to enlist the high court in its partisan march to overturn decades of case law holding the Legislature to the state constitution.

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