There’s a new virus of judicial activism rampant in Florida’s Supreme Court

Florida’s new conservative Supreme Court takes on its former self and the U.S. Supreme Court in death row cases

There has been a real lack of “judicial restraint” lately in Florida.

You may have heard this term, usually by those who decry “activist judges” for “legislating from the bench.”

Unelected judges must be restrained from usurping the roles of elected representatives in the other two branches. That’s how the argument goes.

But it’s usually the banner waved by its most egregious violators.

Here’s an example close to home.

In 2002, the U.S. Supreme Court, in a case styled Atkins v. Virginia, made a landmark ruling that the Eighth Amendment’s ban against cruel and unusual punishment prohibits states from executing mentally disabled inmates.

The 6-3 decision, with the majority opinion written by Justice John Paul Stevens, gave the states the authority to come up with a determination of mental disability.

Phillips’ lawyers argued that under the Walls case, which allowed for retroactive sentencing to comply with the U.S. Supreme Court opinion in Hall, Phillips deserves to be re-sentenced.

But this new Florida Supreme Court, the one that is packed with Federalist Society members who mouth paeans to “judicial restraint,” decided this month that the 4-year-old opinion from their own court no longer applies.

In a nutshell, the new court decided that If you got sentenced to die in Florida by a standard that later has been found to violate the Eighth Amendment’s guarantee against cruel and unusual punishment, too bad. You can’t get a do-over. What’s done is done. We need to move on.

“Phillips’ interest as an expectant potential beneficiary of Walls is set against all the interests that support maintaining the finality of Phillips’ judgment,” the new Florida high court ruled. “The surviving victims, society-at-large, and the State all have a weighty interest in not having Phillips’ death sentence set aside for the relitigation of his claim of intellectual disability based on Hall’s evolutionary refinement in the law.”

Hall’s “evolutionary refinement” of the law? What are they talking about?

In order to justify the decision, the new majority on the Florida Supreme Court had to find that the U.S. Supreme Court ruling in Hall from 2002, no longer applies in Florida.

Now, this is some major-league judicial activism. Nobody had asked the court to reinterpret the 18-year-old U.S. Supreme Court case.

But that’s what this new court did. The Florida Supreme Court called the U.S. Supreme Court ruling an “evolutionary refinement” that “does not invalidate any statutory means for imposing the death penalty against any new category of persons.”

And to make things worse, the Florida Supreme Court made this monumental ruling to sidestep the U.S. Supreme Court while only five of the seven members on the Florida court were seated.

The 4-1 opinion drew a sharp written dissent from Justice Jorge Labarga, who used to be a centrist on the court, and now would be considered an outlier.

“When the law develops in such a manner as to clarify the criteria for intellectual disability -- a status which poses an absolute bar to execution -- this cannot simply be deemed ‘an evolutionary refinement,’” Labarga wrote.

“Today’s decision potentially deprives certain individuals of consideration of their intellectual disability claims, and it results in an inconsistent handling of these cases among similarly situated individuals.”

Among the majority in this new Florida Supreme Court is Justice Carlos Muniz, a Federalist Society lawyer who had never been a judge before he was appointed last year by Gov. Ron DeSantis to the state’s highest court.

The court is short staffed, in part, because one of DeSantis’ other appointments, Palm Beach County Circuit Judge Renatha Francis, must wait until September to join the state Supreme Court because she doesn’t meet the minimum requirement of being a lawyer for 10 years.

For Francis, who met the most-important requirement of Federalist Society membership, being temporarily unqualified for her new job spared her the opportunity to violate the principle of judicial restraint right from the get-go.

Source: Palm Beach Post, Staff, May 30, 2020

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