Accountable Judges
By Jesse Phillips
A response to Florida Bar President Mayanne Downs
Last week we announced a voter education effort to help provide voters information about judges so that they can make informed decisions on Election Day. For far too long the court system has been cloaked in a shroud of secrecy that makes it difficult for voters to decide which judges to retain when their names appear on the ballots each election cycle.
Last year, two of our Supreme Court Justices Labarga and Perry were up for merit retention. We sought to educate voters of their decision to strike down the Health Care Freedom Act. Voters responded by retaining Labarga with the lowest approval in state history. It is clear that our voter education efforts are working, and Floridians are more aware than ever of the problem of judicial activism.
Not everybody approves of what we’re doing, however. Last week Florida Bar President Mayanne Downs expressed some concerns about our efforts. In separate interviews with the St. Pete Times and Sunshine State News, she said the following:
“A fair and impartial judiciary — able to make decisions without fear of political reprisal — is a fundamental value of America, and was central to our Founding Fathers’ core values about this country.”
I agree with Mrs. Downs about the importance of an impartial judiciary. As concerned citizens, an independent, originalist judiciary is our goal. The tag line of the Florida Judicial Review site I run is “Citizens for an independent, originalist judiciary.”
Downs, however, seems to envision a judiciary in which judges can make decisions, no matter how egregious, without any consequence. By minimizing the significance of a single poor decision, she is discouraging citizens from exercising another core value of our nation’s Founding: vigilance.
Whatever her utopian ideal of perfect judicial discretion may be, in the real world of Florida we have a merit retention system for a reason, and if a judge consistently disrespects voters, we can expect voters to exercise their right to express their displeasure through not retaining the judge. This is the reason the system was implemented in the first place.
I also think that Mrs. Downs misunderstands the Founders’ idea of judicial independence. Our courts are independent, but from what? The debate at the time of the ratification of the Constitution was whether or not the courts should be a sub-division of the legislature. One alternative put forth at the time was a government of only two branches–an executive and legislative. Part of the legislative branch would have been a judicial department that would have settled the legislature’s internal disputes over law.
The Founders rightfully thought that this was a wrong approach, and so they made the judicial branch independent of the legislature. They knew that if the legislative branch was able to pass laws, and then make rulings about those laws, there would be too much power amassed in one branch. This was done to prevent the judicial branch from being involved in policy decisions. And yet we see throughout our history as a state and nation that the court system is exactly where policy matters are decided, and radical societal change is affected.
Mrs. Downs makes a critical mistake by suggesting an independent judiciary was intended by the Founders to prevent the judges from the “fear of political reprisal.” I would argue that this absence of accountability to voters is not anywhere near the Founders’ idea of judicial independence, but approaches dangerous form of judicial autonomy which the founders would have dreaded. The courts ought to be independent of the legislative branch, not unaccountable to the people.
Mrs. Downs also criticized us for “attacking judges who have served admirably,” adding that judges are “not supposed to make up the law, and they don’t. They follow the law.”
I’m not sure if this categorical dismissal of even a single instance of judicial activism is wishful thinking, pure ideological blindness or a willful negligence of research. Whatever Mrs. Downs motive for exonerating every judge everywhere from any overstep of judicial power, the statement is flat out wrong. Judges do at times make up the law. Any reasonable analysis shows this.
In her view judges serve admirably and should not be opposed, and we are criticized for having the audacity to oppose these fine public servants who are apparently above reproach.
How admirable is it, though, to overturn an election by throwing out a ballot initiative that had been approved of by 72% of voters? How admirable is it to rob us of our constitutional right to vote on ballot questions that our elected officials ask us?How admirable is it to void private contracts and right to free association, deny the presumption of innocence and hold parties accountable for natural acts they did not cause?
These are things the Florida Supreme Court has done, and if this is your definition of admirable, I’m afraid there’s nothing the court could possibly do to convince you to that judges are not angels. No doubt, many judges are fine people and serve admirably. But there are bad judges.
Judicial activism is not a label to slap on any decision you don’t like. It’s a term used to described a decision that violates the original intent of the law by “discovering” new principals never before seen, informed by the modern sensibilities of a judges aims for societal change. Judicial activism abandons the letter of the law in deference to what the judge deems “fair.” This judicial philosophy, unfortunately, has a foothold in our court nation’s court system, and Florida is no exception. Although Mrs. Downs may be blind to it, judicial activism has been a problem in our state for many years.
The good news is that people are starting to wake up. We voted against activists Labarga and Perry in record numbers last year. It is good for Florida that our governmental official in every branch are aware that people are watching them like never before.
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