DeSantis just lost the judicial firewall he boasted about

TALLAHASSEE, Florida — When Gov. Ron DeSantis remade the Florida Supreme Court, he proclaimed it was the most conservative court in the nation.

But that court this week jolted the governor and the state’s Republicans so much that some party members want some of the justices replaced.

In one swoop on Monday, justices signed off on some of the strictest abortion restrictions in the country, while also greenlighting proposed voter initiatives that, if approved, would enshrine abortion access in the state Constitution and allow recreational marijuana.

Republicans, including the state’s GOP attorney general, asked the court to block the initiatives. But in both ballot decisions, justices appointed by DeSantis proved critical to the final tally.

There’s already been some Republican backlash. Anthony Sabatini, a former state legislator and chair of the Lake County Republican Party, said on social media the justices should be impeached or voted out of office for the ruling on the abortion rights amendment.

“Politics was definitely in play here,” Sabatini said in an interview.

That view was shared by former Florida Supreme Court Justice Barbara Pariente, who said in an interview that, “this current court has no respect for precedent.”

The justices’ decision this week to uphold strict abortion bans overturned a 35-year-old decision that concluded that Florida’s privacy clause — which was added decades ago to the state Constitution by voters — applies to access to abortion.

“It is from my perspective more of a political decision than it is a jurisprudential decision,” said Pariente of this week’s ruling. Pariente had been appointed by Democratic Florida Gov. Lawton Chiles and relied on the 1989 decision when she authored an opinion on the state’s 24-hour waiting period.

The vote to approve a ban on abortions after 15 weeks, which will trigger a stricter six-week ban a month from now, was 6-1, with the lone dissent coming from Justice Jorge Labarga, who was appointed to the court by then-Republican Gov. Charlie Crist.

The justices’ decisions on the two initiatives, which were limited in scope, were closer. The justices ruled 4-3 to let the abortion rights amendment go on the ballot, with the three no votes coming from DeSantis appointees: Justices Renatha Francis, Jamie Grosshans and Meredith Sasso. The decision to greenlight the measure on marijuana was 5-2, with Francis and Sasso dissenting.

The rulings, while telegraphed ahead of time by the questions raised by the justices in court, were still highly significant because the court has backed up DeSantis and Republicans numerous times. The court for example signed off on DeSantis’ requests to create statewide grand juries to investigate Covid-19 vaccines and illegal immigration, including the transport of unaccompanied children and migrants into the state.

That the Supreme Court would try to please both sides by restricting abortion and giving voters the ultimate say shows that the state’s high court, regardless of its connections to DeSantis, is an independent institution that’s willing to issue politically difficult decisions, said one longtime conservative observer.

“This should be further proof that the court we currently have is not in the back pocket of DeSantis,” said John Stemberger, president of the Christian nonprofit Liberty Counsel Action and the former head of Florida Family Policy Council, a conservative organization. “This really speaks to the legitimacy of the court and should ensure further public confidence. This is a court struggling to do the right thing.”

Dan Gelber, a former Democratic state legislator and attorney whose firm has worked on citizen initiatives that went before the court, said all of state government including the state Supreme Court is “deep red” but he praised the decisions on the two initiatives.

“I thought even a very conservative court got it right on the amendments, I think the decision is intellectually honest,” said Gelber.

DeSantis, who was first elected in 2018, had the opportunity to reshape the Florida Supreme Court quickly because three justices, including Pariente, were required to retire due to mandatory age limits. The governor ultimately has appointed five of the seven justices that now sit on the court.

Court appointments are not subject to confirmation; instead those picked eventually go before voters on a yes or no merit retention vote. Both Sasso and Francis are scheduled to go on the ballot this November.

Florida uses nominating commissions to come up with finalists, but DeSantis has acknowledged that he relied on “conservative heavyweights” to screen candidates — although his office has refused to reveal all of those who were involved. The Washington Post reported last year that some of those on the panel included Federalist Society co-Chair Leonard Leo, Chris Kise, a prominent Florida attorney now on former President Donald Trump’s legal team, and former U.S. Sen. George LeMieux.

In his book “The Courage to be Free,” DeSantis said he wanted justices who “have no problem overruling an erroneous precedent” and were not influenced by “elite institutions.”

“I had no interest in a judicial shrinking violet,” he wrote.

Several of those DeSantis picked have long-running ties to Republican circles. Chief Justice Carlos Muñiz worked for then-Gov. Jeb Bush as his general counsel and later worked as the general counsel for Education Secretary Betsy Devos when she was in the Trump administration. Before she became a justice, Sasso’s husband had been appointed by DeSantis to the government board that oversees the land where Disney World is located.

DeSantis’ Supreme Court, several times, has overturned decisions made by previous justices, including one that required a unanimous jury recommendation in death penalty cases. That paved the way for the Republican-led Legislature to scrap that requirement last year.

The court, however, has also occasionally pushed back against Republicans and DeSantis. Justices blocked the initial appointment of Francis to the high court in 2022 after ruling that she failed to meet a requirement that she be a member of the Florida Bar for 10 years. The court also refused to give DeSantis an advisory opinion that backed up his opposition to a congressional map crafted by the Legislature.

But Monday’s rulings marked the court’s most dramatic shift away from the governor, and its abortion amendment ruling even brought a rejoinder from the governor's office.

"We agree with the three women on the court who got it right in dissent," said DeSantis' spokesperson Jeremy Redfern. "This amendment is misleading and will confuse voters. The language hides the amendment's true purpose of mandating that abortions be permitted up to the time of birth."

Nikki Fried, chair of the Florida Democratic Party and an attorney, saw DeSantis’ failed presidential campaign tied to the outcome. She said she doubted the court would have crossed DeSantis if he was on the verge of becoming the Republican nominee for president.

“Just like everything else you are seeing in Tallahassee, he is losing credibility and power,” Fried said. “He tried to maneuver them and tried to get the rulings where his policy positions were. I think this court took a step back and realized Ron DeSantis is not going to be the red carpet they thought he would be. …They are still politicians.”