Florida Supreme Court will lean conservative 'for a very long time' with DeSantis appointees

By Brian Brueggemann | Dec 4, 2018

Gov.-elect Ron DeSantis   Provided

TALLAHASSEE - The election of Republican Ron DeSantis as governor is expected to move the Florida Supreme Court’s leanings to the right – for a long time.

“It’s certainly going to move to a more conservative court. Simply based on his political preferences and points of view, it’s very likely to move the court to the right,” said Louis Virelli, who teaches constitutional law at Stetson University in Tampa Bay.

Michael Morley, who teaches election law and constitutional law at Florida State University, said DeSantis’ selections for the court “are likely to give the court a much more conservative, originalist tilt. The court is likely to place greater emphasis on determining the meaning of statutory text and the original public understanding of constitutional provisions, rather than engaging in a more subjective, open-ended analysis of what they think the best policy would be.”

He added, “It’s likely to defer much more to the state legislature than continuing to create major changes to the state’s common law on its own.”

Louis Virelli   Provided

The Florida Supreme Court currently has a 4-3 liberal majority, which has derailed some of the measures advanced by the state’s Republican-controlled legislature. DeSantis will have authority to appoint three new justices to the court in early 2019. Those three will replace three left-leaning justices on the court who have reached mandatory retirement age.

DeSantis has previously said that his appointees will be “solid constitutionalists.”

The impact on the court is likely to last even beyond DeSantis’ tenure as governor.

“It depends on the age of the justices he appoints, but it will be many years – many years – for sure,” Virelli said. “It’s going to put us in a place where Florida law will likely be viewed in a more conservative perspective, for a very long time.”

Coincidentally, Florida voters in last month’s election approved a constitutional amendment that moves the mandatory retirement age for judges from 70 to 75. The older age cap will apply to the new justices appointed to the court.

Morley said, “The court will definitely remain conservative for at least the next four years, and is quite likely to stay that way for at least the next decade.”

Bill McCollum, a Republican and former Florida attorney general, said the court’s shift to the right “won’t affect routine rulings, but likely will make a noticeable difference in decisions on some issues that may come before the court.”

McCollum said it’s difficult to predict what types of cases will be decided by the court, “but I would expect a new conservative majority on the court eventually to hear cases involving such matters as school choice and redistricting, where a different outcome from the present majority would be likely.”

Morley, the FSU law professor, said death-penalty appeals make up a big portion of the court’s caseload, because the state constitution requires the court to hear them – even skipping the appellate courts.

“The court also might find itself faced with litigation over interpreting the numerous amendments to the state constitution voters approved this year,” Morley said. “Most of the court’s other cases involve issues where different intermediate appellate courts reached different outcomes. Those run the gamut from criminal procedure to major tort cases.”

The court’s racial makeup also will change. DeSantis will choose the three new appointees from a list of 11 nominees sent to him Tuesday by the Florida Supreme Court Judicial Nominating Commission. There are no African-Americans among the nine judges and two lawyers on the list of nominees. That means there will not be a black justice on the court for the first time since 1983.

“I think there’s certainly a school of thought that says the highest court in the state should be representative of the entire state,” said Virelli, the Stetson law professor. “It depends on the people that are chosen, of course, but it certainly will be viewed by lots of people as a step away from a diverse court.”

The gubernatorial election’s long-lasting impact on the court should serve as a reminder to voters of the scope of elections, Virelli said.

“Whether they like the outcome or not, elections very often have long-term consequences,” Virelli said. “The issue of judicial appointments is often secondary to voters, because it’s less direct. Oftentimes the voters are focused, and rightly so, on the policy positions of the candidate that affect them more directly.”

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