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How DeSantis Packed the Florida Supreme Court

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Newly sworn-in governor of Florida Ron DeSantis speaking at an event at Freedom Tower to name Barbara Lagoa to the Florida Supreme Court, Miami, Florida, January 9, 2019


In February the Florida Supreme Court published a set of unusual orders. Acting sua sponte—unprompted by a petition or a case—six of the Court’s seven justices ruled that judges could no longer take classes on “fairness and diversity” to meet their continuing legal education requirements. The court then eliminated a decades-old mandate that new judges complete an antibias training before taking the bench. Finally it dissolved the Standing Committee on Fairness and Diversity, which since 2004 made recommendations to root out discrimination within Florida’s courts.

These unilateral decisions alarmed the Florida Bar. The six justices consulted no one but themselves before paving the way “for a complete dismantling of all fairness and diversity initiatives in the State Courts System,” as their sole dissenting colleague, Justice Jorge Labarga, wrote. They defended their blitz against “fairness and diversity” by claiming that the term was “unilluminating and frequently contested,” ignoring troves of evidence from social psychology, sociology, and cognitive science supporting the benefits of unconscious bias training. And they neglected to acknowledge, even in passing, the primary reason for requiring judges to undergo such training in the first place: the persistent racial and socioeconomic disparities in the decisions of Florida judges, particularly in criminal sentencing.

The same week, Governor Ron DeSantis unveiled legislation to ban diversity, equity, and inclusion (DEI) programs at public universities in Florida. This convergence was no coincidence. In one of his most consequential but overlooked undertakings as governor, DeSantis has named, as of June, five of the Florida Supreme Court’s seven justices. His appointees have turned the court sharply to the right. Forged in the governor’s image, the remade court reflects DeSantis’s hardline conservatism, political pugilism, and culture war fixations. Rather than checking DeSantis’s power, the court is quashing legal challenges to his initiatives and giving Republican primary voters a blueprint of his judicial plans for the nation. The DeSantis court has supplanted the rule of law with an imperative to “own the libs,” transforming a redoubt for rights into a fiefdom of authoritarianism.

Before DeSantis, the court had a left-leaning but pragmatic majority. “The court got a reputation as being very liberal, but there were a lot of different viewpoints” represented on it, Mary Adkins, an emeritus law professor at the University of Florida, told me. Much of its work was the quiet administration of justice: applying precedents to new cases, overseeing the state’s court system, disciplining rogue attorneys and errant judges, and interpreting a prolix state constitution.

As the US Supreme Court moved right under Nixon and after, the Florida supreme court stood its ground. In the late 1970s and early 1980s it defied a hurricane of tough-on-crime hysteria to expand rights for criminal defendants and death row inmates. And in 1989, just months after the Court weakened the right to abortion in Webster v. Reproductive Health Services, the Florida Supreme Court held that the state’s constitution protected abortion access.

Decisions like these made the court an enemy of conservative activists, and in the early 2000s the backlash intensified. During the bitter battle following the 2000 election, the court ordered a statewide, manual recount of tens of thousands of “undervotes,” or ballots that voter tabulation machines had read as lacking a preference among Bush, Gore, and third-party candidates. In Bush v. Gore, the conservative-majority US Supreme Court overturned the recount order, halting the ongoing vote counting and guaranteeing a Bush victory. Despite their triumph, many Republicans believed the Florida court had bent over backward to help Gore.

Not long after, Florida’s Republican legislature and governor, Jeb Bush, intervened in a family’s agonizing struggle over the life of Terri Schiavo, a woman who lived in a vegetative state for over a decade. Schiavo’s husband, citing her wishes, wanted to detach the feeding tube that sustained her; her parents did not. During a rancorous legal fight, Florida courts (including the state supreme court) consistently sided with her husband. Bush and leading Republicans, often invoking their personal religious beliefs, sided with the parents. After Bush signed an unprecedented bill that granted him the authority to reinsert Schiavo’s feeding tube, the Florida Supreme Court struck it down as unconstitutional in a unanimous decision, sharply rebuking Bush for overstepping his powers.

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DeSantis, a native Floridian, entered Harvard Law School in 2002, just as the national conservative legal movement started to target the Florida Supreme Court. He joined the Journal of Law & Public Policy, a right-wing intellectual hub that nurtured conservative stars like Ted Cruz and Neil Gorsuch. He also gravitated toward one group heavily involved in the Bush v. Gore and Schiavo imbroglios: the increasingly powerful association of conservative lawyers known as the Federalist Society, which came to define DeSantis’s early political identity and propel his career. According to his friends, as the Miami Herald reported in 2018, DeSantis’s conservatism had not flourished until law school. Yet within the ranks of the Federalist Society, DeSantis stood out. Leonard Leo, the society’s current cochairman and the architect of President Trump’s overhaul of federal courts, remembered DeSantis as an “active member” who impressed him and the organization’s top brass.

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DeSantis’s early involvement with the Federalist Society earned him attention from and introductions to conservative elites. Six years after graduating and one year before running for Congress, he theatrically signaled his fealty to the organization and its ideology with a book—Dreams From Our Founding Fathers: First Principles in the Age of Obama—that made a full-throated case for originalism, the modus operandi of the conservative legal movement. DeSantis held the founding fathers above reproach, excusing their structural codifications of slavery in the US Constitution. He even scolded Justice Thurgood Marshall, the first Black US Supreme Court justice, for not sufficiently revering the Constitution as it existed before the Reconstruction Amendments. According to DeSantis, Marshall, the great-grandson of a slave, failed to grasp that the “philosophical foundations of the Constitution are incompatible with slavery.”

When DeSantis ran for Congress in 2012, the Federalist Society had his back. Some of its biggest donors contributed to his campaign, helping him outraise other candidates in a crowded Republican primary. Friends from law school introduced him to Senator Mike Lee and former United Nations ambassador John Bolton, two Federalist Society stalwarts whose endorsements proved crucial in the primary. He easily won the primary and the general election.

Most accounts of DeSantis’s time in Congress depict him as an unremarkable and aloof backbencher eyeing higher office. But DeSantis distinguished himself as a vocal (if platitudinous) critic of President Obama’s legal record, using his post on the House Judiciary Committee to rail against Obama’s judicial appointments and constitutional philosophy. His criticisms were rote Federalist Societyese: Obama didn’t understand the genius of the founders and was destroying America’s constitutional system with liberal policies and judges. Speaking at the Conservative Political Action Conference in 2016, DeSantis ranted that “of all the damage that has been done under this administration, probably the most lasting has been the damage done to our Constitution.” Obama, he added, shouldn’t be allowed to “stack the Supreme Court with a fifth liberal judge.”

By his own account, the prospect of reshaping the Florida Supreme Court motivated DeSantis to run for governor in 2018. The court, DeSantis later lamented in a speech to the Federalist Society, was “one of the thorns in the side” of the conservative agenda in Florida, with “an activist majority” that “would rewrite laws, rewrite the Constitution, and basically showed very little respect for the political branches” of a state government controlled by Republicans. “The legislature would pass reforms,” he said, “and they would be uprooted pretty quickly.” In his stump speech DeSantis vowed to end this “judicial activism” by appointing “constitutional conservatives.”

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Supporters of Republican presidential candidate George W. Bush protest in front of the Florida Supreme Court, Tallahassee, Florida, December 12, 2000

DeSantis barely won his gubernatorial campaign, scraping by with a margin of around 30,000 votes out of more than eight million. This narrow victory didn’t faze him. His inaugural address depicted Florida’s courts as a whirlwind of renegade judges wreaking havoc on the people’s liberties, a tempest only he could tame. “Judicial activism ends, right here and right now,” he thundered, echoing one of darkest and most memorable lines from President Trump’s inaugural address two years earlier (“This American carnage stops right here and stops right now”). His bombast startled many Floridians. Justice R. Fred Lewis, whom DeSantis would soon replace on the Florida Supreme Court, called the attacks on Florida’s courts “very disturbing.”

The Florida constitution’s mandatory retirement rule forced Lewis and two other liberals off the Court just as DeSantis took office. DeSantis saw the chance to create not just a conservative court but a subservient one. “This was an important opportunity for our state to improve its judiciary, but, more immediately, reduced a roadblock to getting my legislative agenda to ‘stick,’” DeSantis writes about the vacancies in his new book, The Courage To Be Free: Florida’s Blueprint for America’s Revival. “With three new appointments that I hoped would judge in the mold of US Supreme Court Justice Clarence Thomas,” he adds, “the newly constituted, conservative court” could now be trusted to validate “conservative policy enacted by the legislature.”

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What, exactly, is the mold of Justice Thomas? Like his fellow conservatives on the bench, Thomas is deferential to executive power (especially when exercised by Republicans) and eager to deploy law to advance conservative causes. These attributes would appeal to DeSantis. But Thomas stands apart in his nihilism, his ambition, and the idiosyncrasies of his constitutional philosophy. He rejects stare decisis, the doctrine that holds that courts should adhere to precedent. If a previous ruling clashes with his often puzzling interpretations of “original meaning,” he tosses it. Thomas also recognizes that cases are rarely discrete disputes between individual litigants but rather part of the longer-term process by which the Court mediates legal meaning. In his judicial writings he invites challenges to precedents he dislikes, comments on issues at best tangentially related to the dispute at hand, and sketches a parallel vision of law. In this way he is the justice perhaps most aligned with the Federalist Society, openly conferring with its leaders to chart the future of the conservative legal movement. 

Thomas’s influence is more than this constitutional philosophy. It’s attitudinal. He prides himself on a stubborn refusal to change his views. “I ain’t evolving,” he famously told his clerks upon taking his seat—a snipe at other Republican-appointed justices, like Harry Blackmun, John Paul Stevens, and David Souter, who drifted left. Thomas is imperial in his personal conduct. Alongside his wife, Ginni, he has promiscuously violated ethical rules and norms, often to promote conservative causes or in ways that belie a coziness with Republican elites. And he harbors an ironic but nonetheless smoldering anger at “know-it-all elites,” to borrow a phrase from his 2003 dissent in Grutter v. Bollinger.

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To remake the Florida Supreme Court, DeSantis set up a system to clone Thomas, which he detailed in an interview last year with the radio host Hugh Hewitt. Before his inauguration, DeSantis convened a group of “legal conservative heavyweights” who put potential appointees “through the wringer.” They looked for unflinching conservatives who would channel the same rage at liberal elites. “You are going to get hit by the media. You’re going to get hit by law professors,” DeSantis told Hewitt. “We want people like Justice Thomas who will just stand strong and never, never bend to any of those pressures.”

DeSantis has refused to disclose who all these heavyweights are, insisting the matter is “private.” But in a speech to the Federalist Society in 2019, he revealed that one of them was Leo—a decades-long friend of Thomas. Leo, in turn, said that the selection process focused on potential justices’ commitment to originalism. Membership in the Federalist Society was also crucial. “DeSantis set up a litmus test of Federalist Society membership to get on the Florida Supreme Court, screening for ideologues with his political agenda,” Robert Jarvis, a law professor at Nova Southeastern University in Fort Lauderdale, told me. In his application Carlos Muñiz, a DeSantis appointee who is now the Court’s chief justice, boasted that he had “been a member of the Federalist Society since law school.”

DeSantis has since set up a similar infrastructure to screen appointments to lower court judgeships. In 2020 his general counsel, Joe Jacquot, revealed that the “singular test” for getting appointed to the state bench is sharing the governor’s ideology. “Do candidates have the philosophy that the governor has? And do they have the ability to carry that out on the court for which they’re selected?” he asked, speaking at a Federalist Society event in Orlando. The judges DeSantis has put on the bench “all think the same,” he went on. “So that’s great.”

Candidates seeking judgeships can’t merely align with the Federalist Society on paper. They must perform their loyalty with panache. At the Orlando event, Jacquot recalled that numerous candidates brought up their devotion to Antonin Scalia’s book Reading Law, a sort of bible for originalists, in their interviews. Jacquot’s “favorite” candidate among them, he quipped, was “this one guy” who “came in with Reading Law and it was dog-eared and had those multicolored flags sticking out of it, and he sets it down on the table, and then turns it so we can see the spine. That was good.”

In addition to thinking the same, DeSantis’s justices are all about the same age. His five currently sitting supreme court appointees were sworn in when they were forty, forty-one, forty-two, forty-five, and forty-nine. DeSantis first nominated one of them, Renatha Francis, when she was ineligible to serve because she hadn’t yet been a member of the Florida bar for ten years, as the state constitution requires. His two other appointees to the court—Robert Luck and Barbara Lagoa—were also young, sworn in at thirty-nine and fifty-two. In 2019 they were both appointed by Trump to the Eleventh Circuit, the federal appeals court that has jurisdiction over Florida. Serving on the Florida Supreme Court was once the crowning achievement and final milestone of a distinguished legal career in the state. Now, according to Jarvis, it is a stepping stone. Lagoa was a serious candidate for the US Supreme Court seat that ultimately went to Amy Coney Barrett, another young appeals judge connected to the Federalist Society.

In appointing young justices DeSantis draws inspiration from Thomas, who was appointed to the Court at forty-three, with just over a year of judging under his belt. Their youth will extend the governor’s ideological domination of the high court into the 2050s. And their limited experience hedges against any leftward drift. DeSantis’s appointees came of age during the conservative legal movement, lacking the past professional experiences that can lead judges to write ideologically impure but nuanced and functional decisions.

Before his bruising confirmation hearing, which seems to have exacerbated his contempt for liberals, Thomas worked as an adviser to a Republican politician and as a Republican appointee to the Equal Employment Opportunity Commission. DeSantis’s appointees have similar profiles. Prior to his appointment to the Florida Supreme Court, Chief Justice Muñiz was a hard-charging Republican operative who had worked for a Republican governor, a Republican state attorney general, a Republican speaker of the Florida house, the Republican Party of Florida, and Trump’s secretary of education, Betsy DeVos. While he had never been a judge, he had something more valuable: acclaim from Republican activists and battle scars from years of partisan trench warfare.

The other DeSantis appointees are cut from the same robe. Like Muñiz, Justice John Daniel Couriel had never been a judge before joining the state’s highest court. Instead he was a GOP insider who had run for the state legislature twice as a conservative Republican. He lost both races but secured decades of legal power by articulating his conservative views. Justice Meredith Sasso was a legal aide to Republican governor Rick Scott and had been active in conservative politics since her days as a College Republican. And Justice Jamie Grosshans was an antiabortion crusader who rose to prominence through her legal work for crisis pregnancy centers and Operation Outcry, a Christian ministry that uses novel legal tactics to block women from getting abortions.  

These appointees have an ideological comrade on the court: Justice Charles Canady, who was appointed in 2008 by the chameleonic Charlie Crist, then Florida’s Republican governor. Before becoming a judge Canady was a Republican representative in the Florida house and then in Congress, standing out in the latter as a staunch opponent of abortion and as one of the impeachment managers of the case against President Clinton. Canady has long agitated for the Florida Supreme Court to remake the state according to his political and religious vision, but for years he didn’t have the votes. Thanks to DeSantis’s appointments, now he does.

Wikimedia Commons

Justices (from top left) John Couriel, Jorge Labarga, Alan Lawson, Jamie Grosshans, Charles Canady, Carlos G. Muñiz, and Ricky Polston of the Florida Supreme Court, Tallahassee, Florida, July 8, 2022

The problem with Canady and with DeSantis’s appointees is not that they come from political backgrounds. Some of the nation’s greatest US Supreme Court justices (John Marshall, Hugo Black, Earl Warren) were former politicians. Other luminaries (Louis Brandeis, Charles Evans Hughes, William Douglas) had extensive political résumés. Prior political work can be beneficial to the craft of judging, especially in cases involving statutory interpretation and constitutional law. Justice Sandra Day O’Connor, for example, cared deeply about the impact and workability of Court decisions, a tendency legal scholars have traced to her past life as the former majority leader of the Arizona senate. But law and politics are not the same, and judges who view law as politics by other means—as a mechanism to achieve specific policy outcomes—sap its legitimacy as a stable system for resolving conflicts and protecting rights.

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The decisions of the Florida Supreme Court’s conservative majority speak for themselves. Since 2019, the court has delivered a torrent of hard-right opinions, including major victories for polluters, prosecutors, banks, insurance companies, Big Tobacco, gun manufacturers, corporate CEOs, and the governor himself. Floridians with less power have suffered. The remade court has curbed the rights of people who make minimum wage, people with disabilities, people discriminated against at work, people on the brink of foreclosure, and people serving long criminal sentences. And it has hobbled the tort system, limiting access to courts for Floridians harmed by negligence.

The outcomes are disturbing, but the legal methods behind them are worse. The remade court has adopted a Thomasonian approach to stare decisis, assigning precedent no weight in constitutional cases and negligible weight in others. It has abandoned decades-old precedents, such as a decision from the 1970s that established independent reviews of death penalty cases on appeal for proportionality, as well as precedents that were decided right before DeSantis was elected. In 2020 it overturned a 2016 precedent that required a unanimous jury recommendation for the imposition of the death penalty—proclaiming without any coherent legal explanation that it needed to “recede” from its four-year-old holding. It has even abandoned the legal framework that gave stare decisis force by requiring a special justification to overturn a precedent. The court’s caprices now suffice. “When we are convinced that a precedent clearly conflicts with the law we are sworn to uphold,” it held in 2020, “precedent normally must yield.”

This is not normal. Like Justice Thomas, the DeSantis court reasons from an end-of-history hubris that positions itself as more intelligent and enlightened than its predecessors. Its justices have become the Chosen, anointed with sacred insights that eluded all who came before. Their aggressive arrogance is not entirely unparalleled; it was on full display in Justice Alito’s theocratic opinion in Dobbs v. Jackson Women’s Health Organization. But it is radical and inconsistent with America’s legal tradition. Stare decisis is the primary mechanism that makes a legal system predictable and insulates it from sudden upheavals. Replacing it with a system where judges “recede” from cases they don’t like—based on their personal whims or the results of a gubernatorial election—represents the end of the rule of law.

I spoke to a former justice of the Florida Supreme Court who was horrified by his successors’ renunciation of stare decisis. The justice, who asked to speak on background for fear of retaliation from DeSantis, said that respecting precedent was important because no judge has a corner on knowledge and wisdom: “I faced many situations where I would have rather come down on the other side of a case, but because the law was what it was, and had been that way for a long time, I ruled a different way.”

The court’s open season on precedent has emboldened the Florida legislature to enact a spree of bills that clash with state constitutional law. Liberals have little recourse through the judiciary; legal challenges in state court just tee up the Florida Supreme Court to overturn precedents. Challenges in federal court do not fare much better once cases move beyond trial courts. As DeSantis crowed at a 2021 press conference after a big legal win, “In trial courts in Tallahassee, state and federal, we typically lose if there’s a political component to it. But then in the appeals court we almost always win.” The tripartite system of government has collapsed.

The DeSantis court has also subverted the systems of democratic representation that could theoretically dislodge the uniparty. In June 2022 it failed to block the governor’s extreme gerrymandering of congressional districts, which dismantled a majority-Black district and locked in an enormous cartographic advantage for Republicans. The map—personally ordered by DeSantis after the initial gerrymander drawn up by the legislature didn’t go far enough to maximize Republican gains—flagrantly disregards Florida’s constitution, which establishes that redistricting should originate in the legislature and, per two 2010 amendments, should not hinder racial minorities from electing representatives of their choice. Originalism, clearly, did not hold back the Florida Supreme Court from overlooking the text of the state’s constitution and the relevant signs of “original meaning.” 

With gerrymandering locking liberals out of real power in the state house, Florida progressives have increasingly turned to statewide ballot initiatives to enact policy. In recent years voters have backed initiatives legalizing medical marijuana, restoring voting rights to felons, and raising the minimum wage to $15. These successes have proven too much for the DeSantis court, which has used technical justifications to block progressive initiatives—including popular measures to ban assault weapons and legalize recreational marijuana—from getting on the ballot.

Even approved ballot measures are not safe from DeSantis’s appointees. In 2018 Florida voters resoundingly approved Amendment 4, which ended the near-permanent disenfranchisement of people convicted of most felonies. As I’ve written elsewhere, it was a watershed moment, the largest expansion of voting rights since 1965. DeSantis and the Republican legislature immediately set out to gut it. Exploiting an inadvertent loophole in the amendment’s language, the Florida legislature passed a law that required ex-felons to pay outstanding court fees and fines before voting. DeSantis then turned to the Florida Supreme Court for an advisory opinion to declare this franchise-for-a-fee scheme legal. His appointees happily obliged, writing a rigidly textualist opinion that spited voters’ wishes to restore voting rights without the functional equivalent of a poll tax. When the law was challenged in federal court, the Eleventh Circuit Court of Appeals ruled 6–4 that it was valid. Two of the six votes in favor of the law came from Lagoa and Luck, the DeSantis appointees who were elevated by Trump. Without their votes, the case would have ended in a tie and previous rulings invalidating the law would have stuck.

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Spiting voters is the point. DeSantis sees his judges as sitting above, not within, constitutional democracy. They are part of the state machinery he wields against rivals and opponents. Floridians who object to rule by judicial fiat are punished; judges who follow his commands are rewarded. Consider the case of Jared Smith, a right-wing judge DeSantis elevated to a circuit court in 2019. One of his hard-right decisions—denying a seventeen-year-old the bypass she needed to obtain an abortion—went viral thanks to Smith’s flamboyant misogyny; he held that the girl lacked the “overall intelligence” to make her own decision and highlighted her low high school GPA. After the press reported on his opinion, he lost his reelection bid. Just four months later DeSantis appointed Smith to a powerful appeals court judgeship, and his name has been floated by DeSantis allies as a possible state supreme court justice if there is a future opening.  

Smith, DeSantis, and Thomas share a philosophy that transfers decision-making authority over personal and political matters from ordinary citizens to right-wing judges. When Thomas called for the elimination of the rights to contraception, same-sex marriage, and gay sex in his Dobbs concurrence, he wasn’t just proposing taking away autonomy from women and LGBTQ people; rather, he was advocating for giving judges like Smith and politicians like DeSantis the authority to make intimate choices and enforce them through decree.

Thomas’s Second Amendment jurisprudence and his campaigns against the administrative state and the post–New Deal Commerce Clause likewise diminish the polity’s decision-making authority. They prevent Americans from turning popular support into laws and grant conservative judges a roaming veto of policies they don’t like. Because this antimajoritarian project is inherently unpopular, Thomas and DeSantis try to paralyze the institutions of responsive democracy and shield their hegemony from scrutiny: both have called for overturning New York Times v. Sullivan, a landmark Supreme Court decision that protects the press from undue legal threats and intimidation by politicians.

As a justice, Thomas has shown a soft spot for sensationalistic conspiracies. He’s echoed antivax talking points and urged the Supreme Court to hear cases built around Trump’s stolen election lies. (Thomas’s wife attended the “Stop the Steal” rally that preceded the January 6 insurrection in 2021, promoted a deluge of Q-anon adjacent conspiracy theories about “the Biden crime family,” and pressed swing state electors and Trump’s chief of staff to overturn the 2020 vote.) But Thomas’s colleagues—including Trump appointees—have so far prevented him from ensnaring the Supreme Court in the most outlandish quests of the far right.  

There’s no equivalent cordon sanitaire in Tallahassee. DeSantis’s appointees have entangled their court in DeSantis’s paranoid but politically opportunistic fantasies. In December, for instance, DeSantis petitioned the Florida Supreme Court to impanel a statewide grand jury to probe “wrongdoing” pertaining to Covid-19 vaccines. His petition made no mention of the millions of lives the vaccines saved. Instead it promoted the antivax talking points you’d find in the depths of a Reddit forum: vaccine manufacturers “likely” duped the entire medical establishment with false data, and “the people of Florida deserve to know the truth” about “whether the pharmaceutical industry has engaged in fraudulent practices” given its “notorious history of misleading the public for financial gain.” In short order DeSantis’s appointees approved the request and ordered a wide-ranging grand jury investigation.

Justice Thomas has a dizzying list of ethical scandals, many of which involve the activities of Ginni or gifts lavished on him by the billionaire Republican donor Harlan Crow. The remade Florida Supreme Court has analogous ethical problems of its own. Canady is married to State Representative Jennifer Canady, who cosponsored the six-week abortion ban that DeSantis recently signed and that blatantly contradicts the right to abortion currently protected by Florida’s constitution. To date, Justice Canady has refused to recuse himself from abortion cases, and has not set up a system to recuse himself from other cases challenging legislation his wife—who is poised to become the speaker of the Florida House in 2028—sponsored or wrote. Justice Sasso, meanwhile, is married to Michael Sasso, whom DeSantis has appointed to various positions.

There’s one holdout on the Florida Supreme Court. Justice Jorge Labarga has refused to consent to what, in one of his dissents, he called his colleagues’ “drastic changes in civil, criminal and rulemaking contexts.” Labarga’s dissents are striking on their own terms, but they are even more so considering his background. Before being appointed to the state supreme court by Crist, he led a local Cuban-American Republican Club and hosted fundraisers for Jeb Bush. Labarga’s noble dissents reveal more about today’s conservative legal movement than about him. Labarga represents the sort of conservative jurist—center-right but freethinking and institutionally minded—purged by DeSantis and the Federalist Society. He came to the bench without a manifesto and with a long and distinguished legal career that spanned criminal and civil law. He would never be appointed today.

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In the interview with Hewitt last summer, DeSantis trotted out the standard talking point that his appointees to the Florida Supreme Court opposed “judicial activism.” But then he let the mask slip. “Sometimes, Hugh, you’re called upon to enforce the Constitution in ways that’ll be consequential. And that’s not activism if that’s the proper interpretation of the Constitution,” he said. “I think some people on the conservative side are just judicial minimalists where they don’t ever want to do anything, and they just defer.” Deference—once the lodestar of conservative judges—is a bête noire to DeSantis. In its place is the very form of judicial activism he claims to abhor, a militant conservatism that relies on judges to achieve consequential victories unreachable in electoral politics.  

DeSantis has shaped Florida’s courts with Federalist Society appointees, but he also hopes his appointees will shape the Federalist Society in turn. Commentators on the left often speak about the Federalist Society as a monolith, overlooking that it includes factions with different agendas, strategies, and levels of influence. DeSantis understands that the Federalist Society is a coalitional organization, and he has waded into debates among its blocs. He has reserved some of his harshest criticisms for those within the group who don’t share his revolutionary ardor. Interviewed by former Trump press secretary Kayleigh McEnany at a Federalist Society gathering in February 2022, he offered grudging praise for the US Supreme Court’s three liberals for “vot[ing] the same every single time” and having “no real diversity of thought.” His legal analysis was reductive (just this past term, the three liberal justices split in high-profile cases) but revealing. He considers robotic synchrony a virtue. He then compared the liberals to conservative judges who lacked the “fortitude” of Thomas and Scalia:

You’ve seen judges that have been kind of FedSoc-minted in the federal courts who [will] be real strong on, like, administrative deference and some of those, which are important issues. But when the rubber meets the road on some of these decisions where they’re going to face blowback from some of the [elite] quarters that I mentioned, then they aren’t as comfortable as doing that…. They gave you life-tenure because they didn’t want you responding to the whims of society.

DeSantis’s frustration with parts of the conservative legal movement is palpable. He craves combative and uncompromising (“real strong”) judges who charge into the most polarizing legal disputes—the ones where “the rubber meets the road.” He intimates that these disputes are the culture wars; these issues generate “blowback” from elites in ways that often technical decisions curbing “administrative deference” do not. And he valorizes judges who come to the bench with a doctrinaire agenda that they implement over their lives, defying the “whims of society” (a dysphemism for “popular sentiment and democratic will”) even as society evolves. A Thomas, not a Labarga.

The “real strong” revanchist wing of the conservative legal movement deserves as much credit as DeSantis does for remaking the Florida supreme court: DeSantis was its spear, not its progenitor. Just as Trump was able to lurch federal courts right because of past Republican obstructionism (Senate Majority Leader Mitch McConnell refused to hold a hearing on Merrick Garland’s Supreme Court nomination and gave Trump a raft of vacancies to fill by practically blocking federal court nominees after Republicans retook the Senate in 2015), DeSantis got a layup from his Republican predecessors.

Enraged by the Florida Supreme Court’s role in Bush v. Gore, Florida’s Republican legislature passed a bill in 2001 that gave the governor effective control over judicial nominating commissions, drastically reducing the role played by the state bar association. This change had sweeping results. “We had an independent group who did the review before that change,” Martha Barnette, a former president of the American Bar Association and a lifelong Floridian, told me. “Today, essentially, the governor has total control over the appointment of nominating appointees, and appointments are more political now than at any point I’ve been a lawyer.”

Judicial independence was eroded gradually, then suddenly. Before DeSantis, three successive Republican governors chipped away at the court’s liberal-leaning majority. Their appointments positioned Labarga as the court’s median justice when DeSantis was sworn in. The court was not, as DeSantis recently mythologized in Iowa, “maybe the most liberal state supreme court anywhere in the country” when he took office.

Yet it would also be a mistake to minimize DeSantis’s accomplishments. He brings a sui generis anger and acumen to fights over courts. Of recent Republican presidential candidates, only Ted Cruz has shown similar investment; of currently serving governors, none have had as decisive an impact on their state supreme courts. Moving the law rightward is a touchstone of DeSantis’s life. Whatever becomes of his presidential bid, he has secured his legacy through judges, who will rule long after he’s exited politics. Judicial legitimacy is delicate. It requires patience to build and vigilance to protect, but not much to destroy.

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