How DeSantis Packed the Florida Supreme Court

[In It to Win It]

The New York Review

No paywall: https://archive.ph/U3nWj

Before DeSantis, the court had a left-leaning but pragmatic majority. “The court got a reputation as being very liberal, but there were a lot of different viewpoints” represented on it, Mary Adkins, an emeritus law professor at the University of Florida, told me. Much of its work was the quiet administration of justice: applying precedents to new cases, overseeing the state’s court system, disciplining rogue attorneys and errant judges, and interpreting a prolix state constitution.

As the US Supreme Court moved right under Nixon and after, the Florida supreme court stood its ground. In the late 1970s and early 1980s it defied a hurricane of tough-on-crime hysteria to expand rights for criminal defendants and death row inmates. And in 1989, just months after the Court weakened the right to abortion in Webster v. Reproductive Health Services, the Florida Supreme Court held that the state’s constitution protected abortion access.

The Florida constitution’s mandatory retirement rule forced Lewis and two other liberals off the Court just as DeSantis took office. DeSantis saw the chance to create not just a conservative court but a subservient one. “This was an important opportunity for our state to improve its judiciary, but, more immediately, reduced a roadblock to getting my legislative agenda to ‘stick,’” DeSantis writes about the vacancies in his new book, The Courage To Be Free: Florida’s Blueprint for America’s Revival. “With three new appointments that I hoped would judge in the mold of US Supreme Court Justice Clarence Thomas,” he adds, “the newly constituted, conservative court” could now be trusted to validate “conservative policy enacted by the legislature.”

To remake the Florida Supreme Court, DeSantis set up a system to clone Thomas, which he detailed in an interview last year with the radio host Hugh Hewitt. Before his inauguration, DeSantis convened a group of “legal conservative heavyweights” who put potential appointees “through the wringer.” They looked for unflinching conservatives who would channel the same rage at liberal elites. “You are going to get hit by the media. You’re going to get hit by law professors,” DeSantis told Hewitt. “We want people like Justice Thomas who will just stand strong and never, never bend to any of those pressures.”

The other DeSantis appointees are cut from the same robe. Like Muñiz, Justice John Daniel Couriel had never been a judge before joining the state’s highest court. Instead he was a GOP insider who had run for the state legislature twice as a conservative Republican. He lost both races but secured decades of legal power by articulating his conservative views. Justice Meredith Sasso was a legal aide to Republican governor Rick Scott and had been active in conservative politics since her days as a College Republican. And Justice Jamie Grosshans was an antiabortion crusader who rose to prominence through her legal work for crisis pregnancy centers and Operation Outcry, a Christian ministry that uses novel legal tactics to block women from getting abortions.

These appointees have an ideological comrade on the court: Justice Charles Canady, who was appointed in 2008 by the chameleonic Charlie Crist, then Florida’s Republican governor. Before becoming a judge Canady was a Republican representative in the Florida house and then in Congress, standing out in the latter as a staunch opponent of abortion and as one of the impeachment managers of the case against President Clinton. Canady has long agitated for the Florida Supreme Court to remake the state according to his political and religious vision, but for years he didn’t have the votes. Thanks to DeSantis’s appointments, now he does.