Florida‘s Republican Gov. Ron DeSantis, an ardent fan of President Donald Trump, may have outdone his hero by assembling a high court more coservative than the U.S. Supreme Court.
Luckily for DeSantis, the three most liberal members of the Florida Supreme Court retired just as he took office in January 2019, allowing him to install conservative replacements. Then Trump elevated two of them to the federal appellate court in Atlanta and created two new openings for DeSantis to fill.
Only one of the court’s seven members, Justice Jorge Labarga, a Gov. Charlie Crist appointee, is considered a moderate. Unlike the U.S. Supreme Court, Florida’s premier tribunal has no liberal wing and no no Justice Ruth Bader Ginsburg. DeSantis holds up as a model jurist Justice Clarence Thomas, a member of the U.S. Supreme Court’s conservative majority.
A Harvard-educated lawyer and supporter of The Federalist Society, DeSantis seeks its guidance in selecting justices. The longstanding conservative group is known for its close ties to the Trump administration and has been hugely influential in vetting federal judges since the 1980s
In Florida the governor controls a “merit based” system for choosing appellate judges. This has been true since 2001, when the legislature enabled then-Gov. Jeb Bush to pick all the lawyers who review and recommend judicial candidates with no real input from the Florida Bar.
As a result, Florida under DeSantis has what Tallahassee lawyer Richard Doran, a high-ranking Federalist Society member, proudly called the most conservative court in the nation, the Tampa Bay Times reported.
Not surprisingly, liberals see things very differently.
“We have a court that’s been taken over by The Federalist Society,” says Mark Ferrulo, executive director of Progress Florida. “A very right-wing political ideology pervades that organization. We’re seeing at the state level what President Trump is doing at the national level.
“If you haven’t drunk the Kool-Aid of the Federalist Society, you’re not going to be appointed a judge by the DeSantis administration,” Ferrulo says.
The conservative court has kept a proposed ban on assault weapons off the Nov. 3 ballot, but allowed a ballot measure that will make it much harder to pass grassroots initiatives in the future. When the legislature erected financial barriers to ex-felons’ voting rights, the court approved the law–and was overruled by a federal judge who said the barriers amount to an illegal “poll tax.”
But in no other area has the court stirred more controversy than death penalty law.
The Florida Supreme Court presides over a state with 338 death row inmates, second only to California, according to data from the Death Penalty Information Center.
So the justices spend most of their time on capital cases. Their life-or-death rulings attract much more attention than, for instance, the lawyer discipline they routinely dispense.
In recent years, a series of opinions in murder cases has raised the court’s profile and roiled the state’s criminal justice system. The latest of these rulings is forcing the organized bar to deal with fallout from jarring changes at the top.
Before 2016 Florida was an “outlier” in murder sentencing because its rules weakened the role of juries.That changed with a U.S. Supreme Court decision, Hurst v. State , that told Florida to bring its procedure in line with the rest of the country.
Florida legislators took two runs at revamps and finally won the high court’s approval. Most significantly, the rewritten law says a jury’s death recommendation must be unanimous before a judge can impose the death penalty.
Then, this January, a more conservative panel unleashed a whirlwind when the court decided a case called State v. Poole. The majority effectively revived the capital sentencing rules that existed before Hurst. It was as if the U.S. Supreme Court never intervened to change them, as if the Florida Supreme Court of 2016 never approved any new rules.
The majority explained its decision by accusing the 2016 court of disregarding “decades of settled Supreme Court and Florida precedent. Under these circumstances, it would be unreasonable for us not to recede from Hurst v. State’s erroneous holdings.”
“It is no small matter for one Court to conclude that a predecessor Court has clearly erred,” the majority acknowledged in an unsigned opinion.
The ruling drew an unusually passionate response from Labarga, a carryover from the 2016 court. “The majority removes an important safeguard for ensuring that the death penalty is only applied to the most aggravated and least mitigated of murders,” he wrote. “In the strongest possible terms, I dissent.”
The Poole decision revived a perennial debate in legal circles about whether courts should respect their own previous rulings. Judges of all philosophical stripes have ignored or overturned precedent to further socio-political goals. In the 1954 Brown v. Board of Education decision, the U.S. Supreme Court rejected its own 58-year-old opinion in Plessy v. Ferguson to fulfill the progressive goal of school integration.
With Poole, the goal and result are less clear. The decision created chaos, according to lawyers for homicide convicts who were sentenced to death under the old rules, believed they’d be resentenced under the new ones, and found themselves in limbo.
Karen Gottlieb, who runs the Miami-Dade Public Defender department that represents defendants charged with capital crimes, is counseling five inmates facing death sentences whose juries were not unanimous. The new law mandates resentencing for these inmates.
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After Poole, however, execution without resentencing is still possible. “It’s like you’re playing a game and you want to know the rules and everyone agrees and in the middle of the game it’s nope, new justices, new rules,” Gottlieb says. “In something as serious as the death penalty, that’s particularly dangerous.”
Janet Ferris, who presided over capital cases for 10 years in her judicial career, said trial judges are left rudderless. “You’re going to be faced with having to conduct a trial without real firm guidance from the appellate courts or a direction that you can rely on,” she says. “That’s not good because then mistakes can be made.”
“You want to ensure that if the death penalty is being imposed, the trial has been conducted properly and every possible legal avenue has been examined, so you need to know what those things are,” she says.
Edith Georgi, a retired public defender who used to have Gottlieb’s job, teaches a course on the death penalty at the University of Miami School of Law. She says her reaction to Hurst in 2016 was, “Wow, we finally came into the 21st century and got in line with the rest of the country.”
“Now I tell my students, in January we went backwards,” Georgi says. “I say I can’t tell them what the law is, which is kind of embarrassing.”
The Florida Attorney General’s Office argues it knows what the law is: Resentencing under Hurst is illegal after the Poole decision. The office made that argument on June 2 during a virtual Supreme Court in two consolidated death cases.
Fourteen Florida law professors and civil–not criminal–litigators filed a friend-of-the-court brief and had Elliot Scherker of the powerhouse Greenberg Traurig law firm present it for them. He never mentioned Poole, but spoke only about the importance of finality in the law and how every litigator wonders about their case, “When will it end?”
Scherker quoted from a 1926 Florida Supreme Court decision. The power to disregard a judgment “would be the most uprooting and dangerous act ever exercised by any court. No such power, however, exists,” he said.
The court has not yet ruled on the capital cases that were argued June 2.
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