As bad as Republican losses were in the 2018 midterm elections, the little red wave that hit Florida on Nov. 6 went a long way toward cushioning the blow.
So consequential is the Sunshine State, where Republicans narrowly won two critical statewide races, that many conservatives will still deny that we just experienced a Democratic wave election at all. Whether or not their argument is meritorious, there would never have been any doubt if the outcomes in Florida had gone the other way.
For the national media, the marquee Florida matchup was the race between Republican Gov. Rick Scott and three-term incumbent Democratic Sen. Bill Nelson. Scott won after spending $64 million of his own money, and his presence in the Senate will be critical to President Trump’s efforts to pass legislation and confirm nominees.
But even more important than Scott’s victory was the accompanying upset win by Republican Ron DeSantis, former Florida congressman and now governor. In fact, DeSantis’ race might have been the single most important one on any ballot in 2018.
That may seem like a bold statement, but consider just a few of the arguments for it. Florida is the nation’s third most-populous state. It is the nation’s largest politically competitive state. It has been a bellwether in 10 of the last 11 presidential elections, including in six of the last six. And Republicans just won there in a year when they were facing hurricane-force headwinds.
DeSantis’ narrow victory ensures that, by 2024, no Florida Democrat will have won an election for governor in three decades — not bad for Republicans in a putative hypercompetitive state.
A Democratic victory would have suggested a sea change in Democrats’ favor, likely creating better opportunities for further success. It would have also birthed a new national Democratic star in Tallahassee Mayor Andrew Gillum, who by now would already be in the conversation as a potential presidential nominee — not in 2020 perhaps, but surely someday.
That’s all quite a bit, but it’s not all. There’s something extra about DeSantis’ victory that will affect how 21 million Americans are governed for decades to come. Three of the Florida Supreme Court’s justices — the three most liberal members of the court’s 4-3 liberal majority — were required by law to retire at midnight on Jan. 8, just hours before the new governor would be sworn in, because they had reached the mandatory retirement age of 70. As the court made clear in a unanimous ruling in October, it would fall to the new governor to replace all three justices.
Gillum, who narrowly led in most polls right up to the end, held forth one last hope for the Left and for trial lawyers to keep their grip on the judiciary of one of the nation’s most important states. That hope is now dashed. DeSantis has a free hand to appoint not only a 6-1 conservative court majority, but also a durable one that will last at least 18 years, and perhaps longer.
Older readers might have formed their ideas about Florida’s Supreme Court from its role in the 2000 presidential recount controversy. In those days, the court had a unanimous 7-0 majority of Democratic appointees, all of them progressive in various degrees.
In the years since the recount debacle, the Florida Supreme Court has repeatedly frustrated all efforts at reform by the state’s elected Republican majority. It has thrown up many obstacles, often in the form of 4-3 rulings that overturn precedents, rewrite statutes from the bench, and even turn a blind eye to the language of the law or the state constitution.
At the federal level, where the U.S. Supreme Court has tried to make itself the final arbiter of divisive social issues, voters have caught on to its significance; judicial nominations have become a staple of conservative politics in Senate and presidential elections. But as big an issue as judicial activism is all over the nation, it is rare that a state supreme court should become a campaign issue to the extent that it did last year in Florida.
Before the election, commentators on both sides weighed in with columns expressing concern about how the court hung in the balance. And “judicial activism” was a major campaign issue for DeSantis, who even gave it a prominent mention in his inaugural address this month: “For far too long, Florida has seen judges expand their power beyond proper constitutional bounds and substitute legislative will for dispassionate legal judgment, damaging the constitutional separation of powers, reducing the power of the people, and eroding individual liberty. To my fellow Floridians, I say to you: Judicial activism ends, right here and right now.”
Florida’s high court has a storied history of such activism. Although there are too many examples to list here comprehensively, it’s worth looking at a few.
In 2000, for example, in the case Armstrong v. Harris, the court struck down as unconstitutional a state constitutional amendment that 73 percent of Floridians had just voted for. Ironically, the entire purpose of the amendment had been to protect the legality of the state’s death penalty from a potential Florida Supreme Court decision striking it down.
Another infamous decision, Bush v. Holmes, was handed down in 2006, when the court torpedoed the state’s pioneering school voucher program. The rationale was based on the idea, wholly invented by the 5-2 majority, that the public school system is the “exclusive” avenue by which the legislature may honor its constitutional duty of providing education to Floridian children.
As consequential as such politically significant cases have been, Florida’s liberal court has arguably had its greatest impact in expanding the opportunities for civil lawsuits and liability, the bread and butter of the state’s powerful plaintiffs’ bar. One of the most unfortunate effects of the liberal court over the last 20 years has been that every time the state legislature tries to follow other states in reining in frivolous lawsuits and excessive judgments, and in creating a legal climate less hostile toward business overall, the justices have swiftly brought their efforts to nothing.
In 2001’s Owens v. Publix Supermarkets, the court effectively shifted the burden of proof from plaintiff to defendant in slip-and-fall lawsuits brought against businesses. The two test cases, oddly enough, both involved plaintiffs who literally slipped on banana peels in grocery stores. In its ruling, a 4-3 majority overturned long-standing precedent requiring plaintiffs to show that the business proprietor had notice of the hazard and was given a chance to remedy it.
That same year, the court ruled in two related cases about defective cars. Automobile manufacturers, it ruled in General Motors Corporation v. Nash, can be held liable for injuries even if they were caused by drunk drivers ramming into their cars, or even by drunk drivers ramming their own cars into trees, as it ruled in D’Amario v. Ford Motor Company. Not only that, but the justices ruled that in such cases, drivers’ intoxication cannot even be introduced into evidence, presumably lest juries become confused and fail to award large judgments from the deepest available pockets.
In Newton v. Caterpillar, another 4-3 case handed down just last year, the court similarly upended its own precedent and expanded the liability of rental companies. A careless worker, operating a multiterrain loader that his company had rented from Caterpillar, dropped a heavy stump on the hand of an independent contractor, severing his middle finger. Not content to sue the small company for which he had been working, or the owner of the private land that had hired the company, the contractor sued Caterpillar, which had no control over how employees used its product on private land.
The fingerless worker had his case against Caterpillar thrown out at the trial court level and on appeal, but then the Florida Supreme Court overturned the ruling — giving the finger, one might say, to rental businesses throughout the state. This helps illustrate how judicial activism affects businesses, large and small. When the rule of law is thus degraded, they can find shelter from liability neither in court precedent, nor in the written law. This makes everyday business transactions far riskier for everyone and adds a hidden lawsuit tax to every consumer purchase.
Nor have businesses been the Florida Supreme Court’s only target. In 2005’s Breaux v. Miami Beach, a 4-3 court overturned the lower courts in ruling that Florida’s coastal municipalities are liable when people drown offshore, even if those cities had previously chosen not to operate a beach at the location in question. The dissent pointed out that this would expose Florida’s local governments to enormous liabilities and force the state “to post ‘No Swimming’ signs up and down its expansive coastline.” Again, this is the point for attorneys who seek out cash cows to sue in such cases, hoping to collect a percentage of the winnings. In this case, Miami Beach and its insurer paid out a tidy $5 million settlement.
For another example of how the court has frustrated sensible reforms, look to medicine. In 2003, hoping to curb out-of-control medical costs, the state legislature imposed a cap on noneconomic damages in medical malpractice lawsuits. Within three years, total inflation-adjusted malpractice payouts in Florida fell by nearly 50 percent, according to data from Health and Human Services’ National Practitioner Data Bank.
But, in 2014, the state Supreme Court finally got around to striking down that provision in a 5-2 decision, McCall v. U.S., on the grounds that it violated the Florida Constitution’s Equal Protection Clause. Such rulings tend to make medicine more expensive, the very reason the legislature passed the law in the first place. Inflation-adjusted malpractice payouts in Florida rose by 18 percent between 2013 and 2017.
The Florida Supreme Court’s liberal majority took its parting shot in October 2018, in one of its last decisions before it was disbanded. In a 4-3 ruling, the justices struck down a 2013 law that the legislature had passed in order to re-establish standards for scientific expert witness testimony. And it won’t come as a surprise that they were trying to re-establish the standards because the Florida Supreme Court had essentially eliminated all standards for most cases in a 2008 ruling.
In the 2008 case Marsh v. Valyou, the plaintiff tried to prove that a series of car accidents with four defendants had caused her to contract fibromyalgia. The idea that physical trauma causes fibromyalgia was not generally accepted or scientifically well-grounded, but that didn’t stop Marsh’s lawyer from hiring an expert to testify that trauma causes the condition.
The Florida Supreme Court ruled that, when it comes to novel scientific theories such as this one, an expert’s “pure opinion” may be allowed before a jury based solely on his “personal experience and training.” The problem is that this lowers the bar to the floor, giving carte blanche to anyone with credentials, snake oil, and enough charm to convince a jury.
This ruling prompted Florida’s legislature to intervene with a new statute in 2013 that restored scientific standards for expert testimony. Instead of restoring the old framework that the state high court had just shattered, however, the legislature passed a law adopting the federal courts’ modern standard, known as the Daubert standard. The Daubert standard gives judges flexibility to determine the reliability of expert testimony based on, for example, whether the science involved is peer-reviewed or consensus-endorsed within the field. After pretrial hearings, a judge can prevent a jury from hearing what he becomes convinced is dubious testimony.
But in a 4-3 decision this past October, DeLisle v. Crane Co., Florida’s Supreme Court responded by striking down the legislature’s Daubert law. The three conservative justices — only at this point do three of them exist — hinted in their dissent that the court’s majority had stretched the rules to assert jurisdiction in taking the case. After all, the plaintiff had not even argued at trial that the Daubert standard was unconstitutional. Were the liberal judges especially eager to settle this issue before they retired en masse?
Republicans have now controlled Florida’s state House, Senate, and governorship since 1999, a period interrupted only briefly when Gov. Charlie Crist renounced his GOP membership and became an independent before leaving office. Yet only now, with DeSantis’ election, are they finally changing their state’s judiciary, long known for its left-wing activism.
Florida’s lower courts had already been transformed during this period, such that precious few judges who were appointed by Democratic governors remain on the appeals courts. But the Supreme Court was the big fish that always got away.
Well, it has finally been caught, and it will soon have a large conservative, constitutionalist majority.
The consequences of this change should be profound. The court has, up to now, created uncertainty and expanded potential liability for everyone doing business in the state, from doctors to grocers to municipal governments to heavy-equipment lessors. A court that interprets the law rather than rewriting it could restore the rule of law, potentially creating immense benefits for Floridian patients, consumers, and business owners alike.
What’s more, Floridians just voted in November to raise the mandatory retirement age for all judges and justices to 75. This change did not apply to the three liberal justices who just stepped down this month at age 70, but it will apply to all judges retiring after this summer and to all of DeSantis’ nominees to the high court.
As a result, DeSantis’ first appointee, Justice Barbara Lagoa, will be able to serve until November 2042. His second pick, 39-year-old Justice Robert Luck, is eligible to serve until 2055. For his third appointment, DeSantis will be choosing from the same list produced by Florida’s Judicial Nominating Commission, which Scott had populated with conservatives long before he left office. Among the names still on that list are a 37-year-old, a 39-year-old, and a 40-year-old.
In short, the legal culture in Florida is about to change dramatically for the long term, and likely for the better.
