It’s a paradox in America’s ongoing experiment with self-government that we depend on the weakest branch of government to defend us from the more powerful ones.
The Founders gave a lot of thought and ink to this. Writing in the Federalist, Alexander Hamilton pointed out that the judiciary would always be “least dangerous” to the public’s freedoms because it would be “least in a capacity to annoy or injure them.”
The courts have no police or troops of their own, no power to make laws but only to review them, no control over even their own budgets.
It would be their job, though, to protect against abuses of power by the president or the Congress.
When you see one of those branches going after the courts, like the hotheads in the Florida Legislature at the moment, consider whose ox they’re really trying to gore: yours.
Three pending acts reek of political revenge against the Supreme Court for its decisions to enforce the “Fair Districts” initiatives that voters approved, overwhelmingly, in 2010.
You voted to put a stop to political gerrymandering. You wanted to choose your legislators rather than have them choose you.
The Legislature largely ignored you, to put it politely, and tried to hide the evidence of its skullduggery by hiding behind such phony excuses as “legislative privilege” and “trade secrets.” All that took time, nearly three years in fact, but the court eventually, and rightly, ordered up new maps for the state Senate and the congressional districts.
Now look what’s happening:
— HJR 1, Speaker Richard Corcoran‘s top priority, would impose 12-year term limits on Supreme Court justices and judges of the district courts of appeal. Nearly everyone who doesn’t have a grudge against the courts thinks that’s a bad idea and unnecessary as well, The House passed this with one vote to spare. The Senate appears to be holding on to it as a bargaining chip.
— HB 301, also now in the Senate, nitpicks at the court by calling on it to submit annual reports detailing how many cases are awaiting decision and for how long. That’s a blatant invasion of the court’s constitutional power to make its own rules.
— S for SB 352, a transparent erosion of the “Fair Districts” initiatives, provides for challenged districts to go on the ballot if the cases are still pending in court by the campaign filing deadlines. In the event a map is found unconstitutional afterward, the remedial districts would not go on the ballot until the subsequent election.
In practical terms, it’s impossible to complete any complicated case in the few months between a legislative session and the filing deadlines. What if the politicians whose seats are at stake might again be the culprits behind prolonging the litigation? That would not matter.
This particular act of legislative arrogance also tries to tell the court how to conduct its hearings, although it couches this as encouragement rather than a command. And it cheekily maintains that none of this is meant to “supersede or impair” the Fair Districts amendments. There’s an “alternative fact” for you.
Lord Acton‘s famous maxim that “power tends to corrupt, and absolute power corrupts absolutely” is on almost daily display in Congress and the state legislatures. The perks and emoluments—doorkeepers, pages and messengers, reserved parking places, and, not least, the fawning lobbyists—are intoxicating. One can quickly forget to whom that House or Senate seat actually belongs.
Without the courts—the federal courts, in this instance—the people of Florida might still be the servants of a legislature so malapportioned that fewer than 15 percent of the people, residents of the smallest counties, could elect a majority in both houses.
It was that Legislature, in 1957, which had passed an “interposition” resolution declaring that U.S. Supreme Court desegregation decisions were null and void in Florida. But of course they were not null or void, and the same fate awaits the present legislation that attempts to tell the Florida Supreme Court how to do its business.
Some other incidents are worth recall.
In 1982, the Legislature put on the ballot a constitutional amendment purporting to require financial disclosure by former legislators and Cabinet members who intended to lobby. The title and summary neglected to mention that this would nullify an absolute two-year cooling-off period, directly subverting former Gov. Reubin Askew‘s ethics in government initiative of 1976.
Askew sued, and the Florida Supreme Court threw the deceptive amendment off the ballot. The Legislature did not like that.
In 2000, the court invalidated a constitutional amendment after it had been approved in an election because it had been misrepresented as preserving the death penalty when the intended result was actually to have more executions. Again, the Legislature was unhappy.
In 2010, it bounced two legislatively proposed amendments for misleading language: one dealing with health care, and another that could have weakened the pending “Fair Districts” initiatives.
As for term limits, the way they have dumbed down the Legislature since they took effect there in 2000 hardly makes a case for doing the same to the appellate courts.
Florida needs nothing less than to discourage lawyers in mid-career from devoting themselves to their profession’s highest calling.
It was four such young lawyers who redeemed the Supreme Court from a slough of ethical scandals in the 1970s. Of the four, Ben Overton was the only one who stayed longer than seven years. Arthur J. England and Alan C. Sundberg returned voluntarily to private practice. Joseph Hatchett was appointed to a federal appeals court. Among 22 justices who came and went after 1968, the typical tenure was approximately 10 years. Overton’s, at 24, was the longest.
Florida already requires judges to retire upon reaching 70 or soon after, and that is enough.
Remember who needs strong, independent courts. You do.
Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.