DeSantis changed Florida Supreme Court and the result is judicial activism | Guest Opinion

OK, folks, the elections are over, and a governor and senator have been reelected. It’s now time to focus on the revolution taking place under our noses.

The contests for governor, senator and who will control Congress have taken up so much space that we may not have been paying enough attention to the revolution that is being driven by radical judicial activism.

Governors and presidents come and go, hanging around for four, maybe eight years. But the judges they appoint are here for much longer — and the constitutional changes they make last for decades, sometimes generations.

For example, more than four decades ago, Floridians amended their constitution to protect personal privacy. A few years later, the Florida Supreme Court ruled, not surprisingly, that the right to privacy protected women’s access to abortion care.

Based on this constitutional guarantee, the state Supreme Court held that legislative restrictions impeding women’s access to abortion were “presumptively unconstitutional.” Floridians have not changed their constitution, but Gov. Ron DeSantis changed the membership of the court. And the new court allowed a 15-week ban (with no exceptions for rape or incest) to take effect while pondering its constitutionality.

Will our Supreme Court ignore decades of precedent, holding that a 15-week ban does not interfere with privacy or that the right to privacy limits the information government collects about you, not the ability to control your medical care? That the justices set aside the court’s own precedent and let the abortion ban to take effect does not bode well for the right to control decisions about our healthcare treatment — and other aspects of personal freedom.

In 2010, Floridians had had enough of routine legislative manipulation of the electoral process and adopted Fair District amendments to end partisan and racial gerrymandering of legislative and congressional districts.

Following the 2020 census, DeSantis pressured the Legislature to adopt a new map that abolished two Black congressional districts despite the amendments’ requirement that “districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice.”

But diminishing the power of racial and ethnic minorities to elect candidates, in order to skew our congressional delegation more Republican, was the whole point. The court allowed the gerrymandered map to take effect while considering its constitutionality. Again, the people did not change their constitution; DeSantis changed the membership of the Supreme Court.

And then in 2018, the people of Florida tried to end the system of lifetime disfranchisement. They amended their constitution to restore voting rights for approximately 1.4 million citizens barred from voting due to a past felony conviction. As it was designed following the Civil War, the policy disproportionately impacted Black Floridians.

But the federal appellate court, with DeSantis-recommended nominees making the difference, upheld the Legislature’s distortion of the constitutional amendment and created a financially discriminatory “pay to vote” scheme. Worse, the court imposed a grotesquely unjust system by which former offenders have an obligation to pay all their legal financial obligations but the state has no obligation to tell them how much they owe or even whether they owe anything.

After the U.S. Supreme Court’s decisions striking down protection for voting rights and refusing to address vote dilution by gerrymandering, and especially after overturning Roe v. Wade, discussions have increased in number and volume about whether justices are as partisan as members of the legislative and executive branches or just rigidly ideological. (Is there a practical difference when the most controversial rulings align with the agenda of one political party?)

That spotlight should also shine on our state Supreme Court. In the current constitutional revolution, Floridians may lose abortion rights and protections for the power of their vote. But reinterpretations of the constitution also reset standards by which policies of this and future governors and Legislatures will be evaluated. When justices set aside the wishes of the people or ignore their own precedents, they squander respect for the judiciary and tempt disrespect and defiance. Justices may secure their preferred policies, but for the long run, they tamper with the appearance of a neutral and independent judiciary on which our democracy depends.

Howard L. Simon served as executive director of the American Civil Liberties Union of Florida from 1997–2018. He is now president of Clean Okeechobee Waters Foundation Inc.