DeFlorida Blueprint: DeSantis is shaping the Florida Supreme Court of the 2050s
David Freddoso
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Any conservative older than 35 remembers the drama of the 2000 election, especially the month of Floridian legal chaos that followed the vote itself.
Never had Florida’s courts received so much attention as when George W. Bush and Al Gore took their arguments to dockets all over the Sunshine State, bickering over butterfly ballots and “pregnant chads” until the U.S. Supreme Court stepped in to settle the matter.
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One constant amid all that chaos was the Florida Supreme Court. The court’s liberal majority — seven out of the seven justices at that time, all appointed by Democrats — was reliably and annoyingly willing to rule in favor of whatever Democrats wanted, no matter what. For most people outside of Florida, this was their first introduction to its state Supreme Court.
Those seven justices were a symptom of an affliction from which most of the South suffered until well into the 21st century. Decades of “Solid South” Democratic rule, going back to before the civil rights era, meant that many state courts had been entirely captured by a single party, even as that party was falling out of favor with those states’ modern and less racially polarized electorate.
Unfortunately, there wasn’t any quick or obvious solution to the problem of Florida’s extreme-left Supreme Court. Anyone wishing to remove one or more justices through the ballot box was bound for disappointment. Since the 1970s, Florida’s Supreme Court justices have not been elected but rather appointed and then subjected to retention elections every six years. No justice has ever lost a retention election.
For nearly two decades after the Bush v. Gore saga, Florida’s high court remained a vortex of creative leftist jurisprudence. For years, the liberal court threw out tort reform legislation, subjecting residents, property owners, and especially businesses in the state to ever-expanding legal liability based on vague standards favorable to the plaintiffs’ bar. As late as 2017, they were still giving vague excuses for throwing out many of the reasonable conservative policy innovations that become law, including the state’s 2003 law limiting noneconomic damages in medical malpractice cases.
A succession of Republican governors — Jeb Bush, Charlie Crist (at the time, he was pretending to be a conservative Republican), and then Rick Scott — chipped away at the Left’s dominance over Florida’s judiciary. But the progress was extremely slow at the Supreme Court level as the remaining liberal justices clung to power as long as they were allowed by law.
It was Scott (now serving as Florida’s junior senator) who finally broke the Democratic-appointed majority on the high court in 2016 with his appointment of Justice Alan Lawson. But even then, this only made the centrist (and usually liberal) Justice Jorge Labarga, a Crist appointee, the court’s swing vote.
But as Scott neared his last days as governor, all three of the remaining Democratic-appointed liberal justices were destined to hit the mandatory retirement age of 70 within a few months after the 2018 election. This made it clear throughout 2018 that the next governor, whoever it was to be, would single-handedly shape the Florida Supreme Court of the future. That task fell to DeSantis when he narrowly won. This is just one more reason his election over former Tallahassee Mayor Andrew Gillum, a Democrat, was so crucial to Florida’s history and its political future.
Since his election, DeSantis has appointed six justices — four to replace other governors’ appointees, plus two to replace his own picks after they were elevated to the federal 11th Circuit Court of Appeals by President Donald Trump. DeSantis will soon appoint a seventh justice, meaning that five of the seven serving justices will be his appointees. All five will be eligible to serve through at least 2044. And the court now has what could be described as a 6-1 majority — six conservatives and one centrist.
DeSantis’s influence could last well beyond 2044. On the same day DeSantis was elected in 2018, Floridians voted to raise the mandatory retirement age for justices from 70 to 75. This new rule only applied to the justices who would still be in office as of July 2019 or later, meaning that the remaining liberal justices still aged out at 70, but the conservatives who have since replaced them have been given an extra half-decade of service.
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The four DeSantis appointees serving on the Florida Supreme Court, all under age 53 as of this writing, can remain the court’s majority through at least 2044. And with the retirement of Justice Ricky Polston in March, DeSantis can extend his personally appointed high court majority as far ahead as 2052 when he makes his seventh appointment. One of the leading candidates under consideration is 39 years old, meaning she could serve until 2059.
Whatever else he accomplishes, and whether or not he has a national political future, DeSantis has personally shaped Florida’s high court for the next two and perhaps three generations, turning a notoriously left-wing institution into a conservative redoubt. To be sure, the opportunity fell into his lap through no merit of his own. But with the saga of 2000 as the backdrop, his aggressive moves to create a durably conservative judicial majority, dedicated to the rule of law and resistant to ideological contagion, is no small feat.