Conservative blogger Ed Whelan isn’t giving up his position that retired Florida Supreme Court Justice James E.C. Perry continuing to work on pending cases “appears to be in plain violation of Florida law.”
Whelan wrote on National Review Online last week that Perry was wrongly “displac(ing)” Justice C. Alan Lawson, the newest conservative jurist on the state’s high court.
In the court’s defense, spokesman Craig Waters explained that the court’s “longstanding practice for many decades has been that retiring justices remain in senior status to complete their unfinished work after retirement.”
He also said “there are serious workload issues involved in processing cases because the work is cumulative … asking a new justice to step in … can greatly slow decision-making in those cases – a result that would impose delay and additional expense on the parties to those cases, some of which are facing the death penalty.”
Whelan’s recent rebuttal said “the proposition that the court has employed this ‘practice for many decades’ does not speak meaningfully to the legality of the practice.
“If the court can’t offer a compelling legal explanation for its practice of allowing a retired justice to continue to decide cases after his retirement, it ought to terminate that practice pronto.”
Moreover, “it’s one thing to decide already-argued cases without the new member. It’s quite another thing to allow the retired justice to displace the new member in those cases,” Whelan wrote.
Any “efficiency gains that Waters touts would be achieved by simply deciding the case without him,” he added.
“To be sure, there may be a small number of cases that would have to be re-argued because Lawson’s participation would break a tie among the six remaining justices who heard oral argument. But those are precisely the cases in which having Perry displace Lawson is most objectionable.”