Essay by Professor John S. Baker, Jr., Ph.D.,
Professor Emeritus, Louisiana State University Law Center
The Florida Supreme Court is on the verge of an unusual and unwarranted separation-of-powers clash with Governor Ron DeSantis. Governors, like presidents, regularly must defend their actions against court challenges. Such litigation represents one dimension of separation of powers in action at both the state and federal levels. Although the most famous separation-of-powers case between the executive and judicial branches, Marbury vs Madison, involved a judicial appointment, it is very rare that courts interfere with judicial appointments.
This particular conflict involves whether the Governor’s choice for a vacant position on the state Supreme Court met the eligibility requirement in the state constitution that the person to be appointed is and has been a member of the state bar for the preceding ten years. It was undisputed that the governor’s choice would not meet that requirement until mid-September. The issue on the merits was whether the Governor’s choice had to meet the eligibility requirement when appointed or only when sworn into office.
The Court held that the constitutional text referred to the earlier date, the date of appointment. On the merits, without reference of other arguments, the text could reasonably support either interpretation.
The problem in the case was not so much the opinion on the merits, but rather whether the Court should have heard the case at all. In constitutional parlance that refers to whether the plaintiff or petitioner has standing to ask the court to issue a requested remedy.
The only reason anyone could attempt to challenge the Governor’s appointment is that Florida adopted one of these systems which takes the political check on a judicial appointment away from at least one house of the legislature and puts it in an unelected political body called the Judicial Nominating Commission (JNC) which forces a governor to choose from the JNC’s list of choices.
At the federal level, judicial appointments, as well as removals by impeachment, are strictly matters for the elected political branches. The president nominates and the Senate either does or doesn’t confirm the nominee. Once confirmed by the Senate the judicial nominee is entitled to be seated as a judge. Indeed, that’s what Marbury vs Madison was all about.
Marbury vs. Madison was not only about the power of the judiciary, but also about the limits on that power under separation of powers. Chief Justice Marshall very carefully distinguished between the power to interpret the text of the Constitution and interfering with the political discretion of the executive branch. Even though Marbury was entitled to his judgeship, the Court lacked the jurisdictional authority to order President Jefferson’s Secretary of State, James Madison, to deliver Marbury’s commission.
Florida’s Constitution differs from the U.S. Constitution on the appointment of judges. Nevertheless, that doesn’t alter the important distinction between interpreting text and interfering with the political discretion of the executive.
This decision extended prior Florida Supreme Court precedent recognizing “citizen and taxpayer standing.” That is a euphemism for “no standing required,” advanced by the Warren Court. Outside of constitutional cases, standing is normally easily recognized: it requires an injury to the person suing, caused by the defendant, brought in a court with a power to issue the requested remedy, and a remedy that will redress the injury.
In non-constitutional cases, the presence or absence of standing is normally easily recognized. When a person is physically injured by another person, for example, the injured party has standing to sue those who caused the injury. The plaintiff will seek money damages as the remedy to redress the injuries caused by the defendant.
In Thompson vs DeSantis, the Court not only allowed the petitioner “citizen standing” and “taxpayer standing,” but it failed to dismiss the case when it admitted it could not grant the petitioner’s requested remedy. That the Court could not lawfully grant the requested remedy should have ended the case right there. Unbelievably, however, the Court suggested to the petitioner how the Court could use a different remedy to rule in her favor and then allowed the petitioner – who had just lost the case—to “amend” her complaint against the Governor. The length to which this Court went to reach the pre-determined result is truly breathtaking.
The stripping of standing down to a fig leaf was one of the many destructive directions of the Warren Court. It allowed parties easy access to the courts when they are unable to have their policy opinions prevail through the political process. The late Justice Scalia made undoing the damage done to standing by the Warren Court one of his chief missions in his attempts to restore a proper understanding of separation of powers.
Over the course of almost 25 years, Justice Scalia taught a course to members of the Federalist Society on separation of powers. He would say that his favorite topic was standing because the proper insistence on standing restrains the judiciary from exceeding its proper authority. Before his death took him from the Court, he had restored the rigor to standing that had been eroded by the Warren Court.
It’s very strange reading the opinions for the Florida Supreme Court in Thompson vs DeSantis. With the exception of Justice Polston’s concurring opinion, the Court’s main opinion and a different concurring opinion are indistinguishable from what you would have been commonplace in lower court opinions from the Warren Court era. This is especially odd, given that four of the five justices who participated in the case are active members of the Federalist Society.
Unfortunately, judges tend to repeat what they learned in law schools. The law schools, all good ones, that the current justices attended likely did not teach a rigorous view of standing. Very few law professors were ever fans of Justice Scalia.
Many members of the Federalist Society who consider themselves textualists and originalists don’t realize they are not so. They may have rejected much of what liberal law professors said in class, but did not really learn much about the meaning and purpose of separation of powers.
Justice Scalia repeatedly chided law students and lawyers for not having read the whole of The Federalist Papers. See Antonin Scalia – On American Exceptionalism – YouTube. As he often related, never more than 5% of law student and lawyer groups to whom he had spoken had read the whole of The Federalist. Without that knowledge, he would say one really cannot understand the Constitution.
Having heard then-Representative DeSantis speak with a command of The Federalist, I would offer two suggestions to Governor DeSantis. First, he might let it be known that in considering candidates for any judicial vacancy he would like to see aspiring judges who have read the whole of The Federalist. Second, I would hope the Governor would promote a state constitutional amendment to abolish the JNC, which the framers of the Constitution would properly have viewed as an infringement on executive power.
Professor Baker co-taught with Justice Scalia the Separation of Powers course for Federalist Society.