Florida's State Constitutional Adjudication: A Significant Shift as Three New Members Take Seats on the State's Highest Court?
Heskin, Shane R., Albany Law Review
One of the powers of Florida's governor is to make appointments to the state's Supreme Court.(1) As governor, Lawton Chiles made five appointments to the Supreme Court and made a sixth appointment in conjunction with then-incoming Governor Jeb Bush; all of these appointments are considered to be moderate to liberal justices.(2) Generally, appointments reflect the political philosophies of the appointing governor.(3) As such, many agree that former Governor Chiles has constructed the Supreme Court of Florida to be a moderate court, reflecting his moderate political philosophy.(4) The final appointments made by Chiles have been viewed as perpetuating the court's moderate philosophies.(5)
The changing composition of the Supreme Court of Florida makes it an opportune time to conduct a high court study of Florida's high court. The court is going to experience three new faces and viewpoints,(6) and it is going to experience the departure of three veteran members, and their attendant judicial philosophies.(7) In addition, the court has recently changed chief justices, as Gerald Kogan, who was widely touted as the most liberal on the bench,(8) was replaced by Justice Major Harding, who is recognized as a moderate to conservative.(9) The result of the recent changes to the court's composition make it difficult to predict how the court's judicial philosophies will change.(10) In short, the current judicial philosophies of the Supreme Court of Florida are uncertain, thus making a high court study proper at this time. An examination of the individual members' judicial philosophies and their respective approaches to state constitutional issues will help identify which philosophies and approaches the court is losing and which are the unknown variables of the new court.(11) Although the justices are usually labeled either liberal, conservative, or moderate by commentators and practitioners, those labels do not always reflect the way the justices vote.(12)
A high court study, such as this one, is a way to determine the individual philosophies by examining the individual votes and opinions.(13) This High Court Study will examine each individual justice's voting patterns, judicial philosophies, and approaches to state constitutional issues.(14) In addition, this Study will compare the judicial philosophies of the departing justices to the expected judicial philosophies of the incoming justices in the hope of ascertaining the future direction of the court related to state constitutional adjudication.(15)
Part II of this Study will identify the methods used to conduct this Study and will outline the nature and process of state constitutional adjudication.(16) Part II will also discuss the benefits of understanding how a court approaches constitutional issues and the individual judicial philosophies of the justices.(17) Part III will discuss briefly the structure of the Florida Constitution and the significant differences between this state constitution and the Federal Constitution that affect state constitutional adjudication.(18) In addition, Part III will delineate the organization of the Supreme Court of Florida and discuss how the current court evolved into the court that exists today.(19) Part IV will identify the individual justices and examine the results of this Study.(20) Part V will look at the court as a whole, and assess its independence and judicial philosophies.(21) Part VI concludes that former Governor Chiles' efforts to insure a moderate court before the end of his term has paid dividends, as the court has seen a moderate shift in the court according to this Study.(22)
II. THE STUDY
The fundamental principles of federalism can be evidenced by the way some state courts address constitutional issues.(23) The more independent the state, the more federalist principles are demonstrated by the court's adjudication of constitutional issues.(24) In turn, a state high court's independence can be determined by how the court analyzes constitutional issues. …