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Here’s why Republicans are so excited about Florida’s new Supreme Court

The state’s highest court had been the last check on Republican power in Tallahassee.
The Florida Supreme Court in Tallahassee. [Scott Keeler Tampa Bay Times]
The Florida Supreme Court in Tallahassee. [Scott Keeler Tampa Bay Times]
Published Jan. 25, 2019
Updated Jan. 25, 2019

On the eve of the gubernatorial inauguration earlier this month, Florida’s new lieutenant governor told a ballroom of supporters what she believed to be the most lasting legacy for the incoming governor, Ron DeSantis.

It wasn’t the environment or expanding school choice. Rather, the chance to replace three of the seven state Supreme Court justices “will single-handedly be the most important thing for the future of this state that we’ve ever seen," Lt. Gov. Jeanette Nuñez said.

For the last two decades, Republicans have controlled the governor’s mansion, Legislature and Cabinet. They’ve effectively had only one check on their power: Florida’s Supreme Court.

The battles between lawmakers and justices have been epic, with lawmakers trying to control the court and the court routinely rejecting their legislation. (In 2012, for example, lawmakers tried to get voters to pass a constitutional amendment giving them more control over picking new justices. Voters overwhelmingly rejected it.)

Three years and three picks later, Florida’s new high court no longer has any justices appointed by Democratic governors. Some observers believe it’s now the most conservative in the country.

Whether the high court will remain a check on lawmakers remains to be seen. But Nuñez, at least, expects the justices to finally fall in line with Republican orthodoxy.

“For far too long, those of us who have served in the Legislature have battled with the Supreme Court on many issues," Nuñez, a former state representative, said. "We are confident that the governor’s appointees are going to do what they are intended to do.”

For an indication of what that might be, here’s a look at some of the biggest clashes between the court and Republicans in Tallahassee since the GOP-takeover in 1999:

Terri Schiavo (2004)

A national debate about Terri Schiavo, a severely brain-damaged woman whose family was at odds over whether she should be kept alive, led to years of litigation and action by Republican lawmakers.

Her husband said she never wanted to be kept alive artificially. Her family disagreed, and Republican Gov. Jeb Bush and his allies in the Legislature were on their side.

As lower courts continued to side with Schiavo’s husband, legislators had had enough. To get around the court decisions, lawmakers passed “Terri’s Law" in an emergency session in 2003, allowing Bush to intervene in the case.

Bush quickly signed it and ordered state police to ensure Schiavo’s feeding tube was reinserted. But the state Supreme Court unanimously struck it down in 2004, finding it violated the separation of powers between the legislative and judicial branches of government.

“It is a strong rebuke to politicians who attempt to negate court decisions – especially those involving extremely difficult life and death issues – simply because they disagree with the outcome,” Randall Marshall, then the legal director for the American Civil Liberties Union of Florida said after the decision.

Schiavo died in 2005 after having her feeding tube removed.

Redistricting (2012-2015)

When voters passed the Fair Districts constitutional amendment in 2010, they intended to prevent politicians from gerrymandering the state’s various districts.

Lawmakers in Tallahassee apparently couldn’t help themselves, however.

The high court, which was responsible for approving the maps, repeatedly rejected the state Senate and congressional maps drawn up by the Legislature.

Altogether, the debate over redistricting would lead to four trials, three special sessions and eight rulings from the Florida Supreme Court, costing taxpayers more than $11 million.

In 2015, the court finally agreed to a series of maps, some drawn by Common Cause Florida and the League of Women Voters of Florida, liberal-leaning organizations.

The sting of the court’s decision has lingered with some Republicans since.

"The court, which is tremendously biased, took this biased and spiteful approach during the process,'' the current House speaker, Jose Oliva, R-Miami Lakes, said in 2017. “They overstepped their bounds. They had no concern for the separation of powers and they literally took a map from a group of people who testified that they had connections to all sorts of political organizations. How is that okay?”

Private school vouchers (2006)

Republicans have repeatedly tried to expand the school voucher system, and while they’ve been successful, the Supreme Court has stopped attempts to allow vouchers to be used in private schools.

In 2006, the court struck down Bush’s “Opportunity Scholarships” voucher program, ruling 5-2 that it “diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children.”

But with a totally revamped court, the court might get a chance to revisit the idea. Gov. Ron DeSantis has already said that it’s time for the new court justices to revisit private school vouchers.

Capital punishment (2016)

After the U.S. Supreme Court ruled Florida’s death penalty law unconstitutional in 2016, lawmakers and then-Gov. Rick Scott went back to the drawing board.

The result was a law that allowed 10 of 12 members of a jury to impose a death sentence. But in a 5-2 ruling, Florida’s high court found the new law unconstitutional as well.

On top of that, the court said that death sentences must be handed down by all jurors on a case.

Then-House Speaker Richard Corcoran, R-Land O’Lakes, called the decision further evidence of its “ongoing effort to subvert the will of the people as expressed by their elected representatives.”

Lawmakers and Scott eventually passed a law requiring unanimous jury verdicts.

Ballot initiatives (many years)

Then, there are the various ballot initiatives that the court has to decide on each year. Those decisions have frequently earned the ire of Republicans.

In 2010, for example, after the court blocked three initiatives passed by the Legislature, then-House Speaker Dean Cannon lashed out, saying the court didn’t have the authority. (PolitiFact rated his statement “mostly false.”)

“Over the past year three times we saw the work of a three-fifths super majority of this legislative branch, the elected representatives of over 18 million Floridians, demolished by five unelected justices of the Florida Supreme Court,” Cannon said after.

And last year, the court blocked an initiative by the Constitution Revision Commission that would have given control of charter schools to the state, saying ballot the language was misleading. The sponsor, Erika Donalds, blasted the decision by “activist judges.”