This November, Floridians will vote on whether to retain three Florida Supreme Court Justices and 15 District Court of Appeal judges. They’re not on the ballot because they did something wrong; rather, it’s just business as usual under Florida’s merit-retention system, which requires that all Florida Supreme Court Justices and appellate court judges appear on the ballot in six-year cycles based upon when they were appointed by the governor.
As a current member of the court I can neither support nor oppose fellow justices or any of the appellate court judges on the ballot. However, I can speak out about the purpose of merit retention and ask that when you go to the voting booth you consider the importance of a separate judicial branch in our system of government, which is built on a foundation of “checks and balances” and “separation of powers.” It is much like a stool delicately balanced on three legs.
• One leg is the legislative branch, which makes the laws. Our Legislature passes laws covering a broad range of topics affecting just about every aspect of our lives and taking up almost 11,000 pages of small type. That’s a lot of power.
• Another leg of the stool helps balance that power. Specifically, the executive branch, which implements the laws, is headed by the governor, who has the authority to veto laws and keep them from going into effect. To enforce and implement the laws that do go into effect, the governor presides over more than two dozen agencies. Again, that’s a lot of power.
• The third leg of the stool helps balance the legislative and executive branches of power combined. Specifically, the judicial branch is charged with interpreting laws and constitutional provisions. That means that the judicial branch can in the end strike down a law that was passed and implemented by the legislative and executive branches, even if the law is very popular. That can make the judicial branch very unpopular. After all, the people liked the law, and it was enacted and enforced by officials that they elected, so what’s the problem?
The problem is that even popular laws can offend the very foundation of our society — the Constitution. A great example is Brown v. Board of Education, a 1954 case in which black children had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. The U.S. Supreme Court concluded that “[s]eparate educational facilities are inherently unequal. Therefore, we hold that [the children] . . . are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment” of the Constitution.
Brown was so unpopular it led to riots. But mob rule does not govern our country, the rule of law does. A core constitutional principle is the protection of the powerless from “the tyranny of the masses.” The justices in Brown could address that tyranny without fear of being kicked off the court, as U.S. Supreme Court justices are appointed for life. Their independence was assured because they were insulated against political or popular pressure or retaliation. They could do their jobs properly precisely because they were without fear of losing them.