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Special Report: Supreme Court
The hunt for ‘Judicial Activists’
February 6, 2006
By Carl Jones and Harris Meyer
After the Florida Supreme Court struck down Gov. Jeb Bush’s signature school voucher program as unconstitutional last month, state Chief Financial Officer Tom Gallagher painted a bull’s-eye on judges.
“Today the judiciary chose to create their own law rather than follow the laws of our state,” Gallagher said shortly after the Jan. 5 Bush v. Holmes decision. Gallagher, who’s running for governor, is trying to woo Christian conservative voters.
He described the decision as “judicial activism based on ideology and not the law.” If elected, he declared, “I vow to nominate jurists who will follow the rule of law as opposed to legislating from the bench.”
Florida Bar president Alan Bookman dismisses such criticism of the voucher ruling as ignorant. “It’s easy to substitute your judgment when you don’t have the facts,” he said in an interview.
The high court, in a 5-2 opinion written by Chief Justice Barbara J. Pariente, held the voucher program unconstitutional because it violated a state constitutional requirement that the Legislature provide for a “uniform” system of free public schools. Justices Charles T. Wells, Harry Lee Anstead, R. Fred Lewis and Peggy A. Quince concurred.
The dissenters were Raoul G. Cantero III and Kenneth B. Bell, the two justices appointed by Gov. Bush. Bell, who wrote the dissent, argued that nothing in the “uniformity” provision prevented lawmakers from creating an alternative for children to attend private and parochial schools. 
The justices did not address the issue of public funding for religious institutions, which was widely expected to be the crux of the case. The justices may have hoped to sidestep that politically explosive constitutional issue.
Nevertheless, the court faced the harshest criticism it’s received since ruling unanimously in August 2004 that Terri’s Law, a statute pushed by Gov. Bush to reinsert Terri Schiavo’s feeding and hydration tubes, violated the constitutional separation of powers.
The political controversy over the voucher ruling is likely to hang over the Supreme Court through its 2006 session. The decision has sparked calls by conservatives to limit the court’s powers, pass a constitutional amendment to keep the voucher program alive and even to rewrite the constitution.
Meanwhile, state Rep. Rafael Arza, R-Hialeah, has vowed to lead a campaign to unseat three justices in the majority — Pariente and Justices R. Fred Lewis and Peggy A. Quince — who face merit retention elections in November.
But an analysis of the Holmes decision and other key Supreme Court rulings issued over the last year, and interviews with many appellate experts, suggest that charges of judicial activism against the current court are hard to support.
“Courts do not rewrite statutes,” said veteran appellate attorney Elliot Scherker, a shareholder at Greenberg Traurig in Miami. “Courts certainly do not rewrite constitutional provisions. If statutes are ambiguous, the courts are obligated to construe them with the goal of having the statutes make sense and be reasonable.”
Allegations of judicial activism are common in the broader national debate over the role of the courts. President Bush praised his U.S. Supreme Court nominee, Samuel A. Alito Jr., as someone who “understands that the role of a judge is to strictly interpret the law, not to advance a personal or political agenda.”
But most close Florida Supreme Court watchers say the state’s current justices are a cautious group who generally rule as narrowly as possible and strive to show deference to the legislative and executive branches.
“I think this is a court that tries to keep very much to the straight and narrow,” said Nova Southeastern University law professor Robert Jarvis. “It doesn’t go looking for issues.”
Examining the court’s rulings over the past year reveals the justices struggling with close questions of interpretation often involving vague or ambiguous statutory or constitutional language. In none of the cases did the court majority engage in any unusual method of interpretation or establish any sweeping expansion or contraction of the law.
Indeed, in the school voucher case, many experts thought the court would have been on solid ground in more broadly striking down the voucher program as a violation of the explicit constitutional prohibition against state money going to religious institutions. That’s what the lower courts did.
In another case involving criminal sentencing, some attorneys say the justices were too politically cautious and refused to apply clear constitutional law to strike down excessive sentences based on fact-finding by judges, not juries. Justice Anstead criticized his colleagues on that basis. 
On the other hand, some justices at various times do interpret statutory and constitutional language more literally than other justices do. But it’s not always who you would expect.
Many court watchers say the charge of judicial activism comes from critics who simply don’t like the results in particular cases. At the Bar’s annual meeting last fall, Pariente, responding to charges of judicial activism in the Schiavo case, said as much. “If you read editorials and are keeping track,” she said, “it really has been used as a way to say, ‘This is a decision we disagree with.’ ”
Some Republican critics of the court acknowledge this. “I guess the interpretation of the constitution is a fluid thing,” said state Rep. Joe H. Pickens, R-Palatka, an attorney. “And right now, a majority of our justices are interpreting it in a manner different than I would.”
But U.S. Rep. Jim Davis of Tampa, who’s running for the Democratic gubernatorial nomination, criticizes this kind of talk. Like Gallagher, he says he’d appoint judges who follow the law. But he disagrees on what that means.
“Judges should stay independent of the politicians, and politicians should stay independent of the judges,” Davis said.
The justices declined to comment for this article.
Judges use same tools
In his new book, “Active Liberty,” U.S. Supreme Court Justice Stephen Breyer writes that statutory and constitutional language often does not make clear the law’s meaning or how it applies. The reason may be legislative sloppiness, demagoguery or lack of foresight. That’s where the courts come in.
All judges, Breyer says, use the same tools for interpreting statutes and constitutional provisions — language, history, tradition, precedent, purpose, and consequence. But, he writes, judges differ in where and how to use these tools and in the relative emphasis they give to each.
According to Breyer, when there is vagueness or ambiguity, some judges look primarily to text and use arcane methods of linguistic interpretation in search of an “objective” interpretation. This is the originalist school of U.S. Supreme Court Justice Antonin Scalia, which Breyer implicitly criticizes.
Other judges look primarily to the statute’s purposes to guide them in deciding close cases. They examine legislative history and ask how the legislature would have wanted a court to interpret the statute in light of present circumstances.
Breyer favors the latter approach. “An interpretation of a statute that tends to implement the legislator’s will helps to implement the public’s will and is therefore consistent with the Constitution’s democratic purpose,” he writes.
In contrast, Justice Clarence Thomas wrote in a 1992 opinion that judges should “presume that [our] legislature says in a statute what it means and means in a statute what it says.”
Duty to educate
The Opportunity Scholarship Program was enacted in 1999, soon after Jeb Bush was elected governor. It allows students in Florida’s worst-performing public schools to receive state vouchers of up to $3,400 to pay for a private or parochial school education.
The money used for the vouchers is deducted from the budget of the student’s public school district. Most of the roughly 700 students enrolled in the voucher program attend Catholic schools.
In 1999, a group of Escambia County teachers led by Ruth Holmes sued, claiming that the program violated the state constitution by sending public money to parochial schools. The suit cited Article I, Section 3 of the constitution, which states that no state money shall be used, “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”
But in 2002, without addressing the so-called no aid issue, Leon Circuit Judge P. Kevin Davey ruled that the program violated the “uniformity” provision of the Florida constitution, Article IX, Section 1(a).
That provision states: “It is … a paramount duty of the state to make adequate provision for the education of all children residing within its borders. … Adequate provision shall be made by law for a uniform, efficient, safe, secure and high quality system of free public schools.”
Bush appealed. A 1st District Court of Appeal panel held in 2000 that the voucher program did not violate the uniformity provision.
After the case was remanded, Judge Davey declared the voucher program unconstitutional under the no-aid provision. That decision later was affirmed by a split 1st DCA panel and affirmed again by the full appellate court in a split opinion.
Bush appealed again, and the Supreme Court heard oral arguments in June 2004.
While the lower court decisions, the briefs and most of the oral arguments focused on the constitutional provision barring aid to religious institutions, the seven justices chose not to address that question at all. Some observers say that choice demonstrated their restraint, not their activism.
Veteran Miami appellate attorney Lauri Waldman Ross said the justices clearly wanted to craft the narrowest decision possible “without reaching out to other issues and impacting more than they have to.”
Ross said ruling on the no-aid provision could have affected other state programs, such as a school voucher program for the disabled and state Medicaid payments to Catholic hospitals. That could have set off broader political ripples.
“If they only have to answer one question, they’ll answer the easiest,” said John Mills, a veteran appellate lawyer in Jacksonville.
Former Supreme Court Chief Justice Gerald Kogan said avoiding the no-aid issue may have been the only way to gain a majority to decide the case. “You have to come down with a decision in a case and you are going to have make concessions to get a majority,” said Kogan, who’s now in private practice in Miami. “But you make concessions you can live with.”
‘Not uniform’
In Holmes, both the majority and minority couched their opinions as narrow interpretations of constitutional and statutory language. Both sides laid out a similar interpretive methodology. In the end, though, the two sides read the word “uniform” differently.
The Holmes majority stressed that it was not second-guessing the Legislature and the governor. “The justices emphatically are not examining whether the public policy decision made by the other branches is wise or unwise,” the majority said. “However, the issue we face today … is what limits the constitution imposes on the Legislature.”
The majority said the plain language of Article IX, Section 1(a) was unclear and ambiguous and therefore needed further interpretation.
In addition, the majority said, neither the original 1999 Opportunity Scholarship Program statute nor the 2002 reauthorization acknowledged that the Legislature is constitutionally obligated by this section to provide for a “uniform, efficient, safe, secure and high-quality system of public schools.” The justices called that omission “critical.”
That section, the majority said, “is a limitation on the Legislature’s power because it provides both a mandate to provide for children’s education and a restriction on the execution of that mandate.”
The justices said the mandates in the uniformity clause must be read together. If they are read as a whole, they said, the voucher program “violates this provision by devoting the state’s resources to the education of children within our state through means other than a system of free public schools.”
“We find that the [voucher program] … diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the constitution for the state to provide for the education of Florida’s children. This diversion not only reduces money available to the free schools, but also funds private schools that are not ‘uniform’ when compared with each other or the public system.”
Parents, the majority wrote, have the right to educate children any way they want, but the state constitution “does not authorize additional equivalent alternatives.”
Voters sovereign
The dissent, written by Justice Bell and joined by Justice Cantero, began by approvingly quoting the 2000 1st DCA panel decision. It said that nothing in the uniformity clause “clearly prohibits the Legislature from allowing the well-delineated use of public funds for private school education, particularly in circumstances where the Legislature finds such use is necessary.”
The majority, Bell wrote, did not give the voucher program the proper presumption of constitutionality, and the majority incorrectly found that the language of the statute was vague and ambiguous. He contended that the language was clear.
The constitution, he said, gives the Legislature general power over how to educate Florida’s children, except for activities that are explicitly prohibited. No statute should be ruled unconstitutional “unless it is clearly contrary to an express or necessarily implied prohibition within the constitution,” he wrote.
Even though Bell said it was “improper” to examine the intent and history of the uniformity provision because it is not ambiguous, he went ahead and did so anyway.
If the voters, acting as the “ultimate sovereign,” had wanted such a restriction on alternative education methods, Bell said, they could have approved one when they went to the polls in 1998 to vote on a constitutional amendment reaffirming the Legislature’s obligation to educate Florida children.
Nowhere “were the voters informed that by adopting amendments, they would be mandating that the public school system would become the exclusive means by which the State could fulfill its duty to provide for education,” he wrote. 
Strange bedfellows
Another case that more clearly illustrates the justices’ differences in statutory interpretation is Maddox v. State, which the Supreme Court decided on a 4-3 vote last month. But it also shows that the current justices cannot easily be categorized as literalist or intentionalist.
The case focused on a statute that prohibits the introduction of traffic tickets into evidence for “any trial.” The question the high court faced is whether the statute applies in a criminal forgery trial when the traffic ticket is the document that was forged, thus providing the prime evidence of the crime.
Both the majority and minority said the purpose of the statute is to protect people in traffic offense cases from the admission of prejudicial evidence recorded by the police officer on the citation.
The case, however, hinged on what lawmakers meant when they used the term “any trial.” Did they mean all kinds of trials, including trials other than traffic cases? Or did they mean just trials over traffic infractions?
In an unsigned opinion, the majority overruled prior Supreme Court precedent and said the logical way to interpret the statute is to infer that the Legislature meant the prohibition to apply only to trials concerning a traffic-related offense.
To back up its opinion, the majority noted that the declared legislative intent and legislative history of the statute contained numerous references to “traffic” rules. The justices said that to apply the statute to cases other than trials over traffic infractions would extend its meaning “far beyond the scope” of legislative intent.
 But in a dissent, Justice Cantero wrote that “any trial” literally means any and all trials, and that lawmakers could have limited the application if they wanted. Cantero argued that the majority was inserting its own meaning into the statute, and approvingly quoted the 1992 opinion by Justice Clarence Thomas about the legislature meaning what it says.
The majority scoffed that “such a sterile literal interpretation should not be adhered to when it would lead to absurd results.”
Who joined Cantero in his “absurd” literal reading of the statutory language? Two of the justices state Rep. Arza accuses of being judicial activists and wants to unseat — Pariente and Quince. 
And who was in the intentionalist majority? Justice Bell, the darling of conservatives for his school voucher dissent.
Worried about recall
Despite the dearth of evidence that the current court has an activist agenda, Arza announced he would start a political action committee to oust Pariente, Lewis and Quince in the merit retention election in November. “I’m against all three of them,” Arza told the Palm Beach Post.
But U.S. Rep. Davis said he thinks Arza’s campaign is unfair. “These judges in [the school voucher case] were making an honest attempt to solve the law as they saw it, and I don’t think that should be a basis for politicians attacking the independence of the judiciary,” he said.
While no Florida justice has ever lost his or her seat in a merit retention election, attorneys and judges are concerned. A respected Pennsylvania justice was unseated in a merit retention election last fall.
In an interview, Rep. Dennis K. Baxley, R-Ocala, a social conservative who is sharply critical of the Holmes ruling, said he thinks voters might turn the justices out of office.
In the voucher case, Baxley contended, the court majority “began with the end in mind and then organized the argument to fit the end. Why do we have a retention system if not for the people to express their view of the rulings of the court?”
But Florida Bar president Bookman said he hopes politicians and the public will accept and respect unpopular court decisions if they are rooted in the law and the facts of each case.
Because of such political attacks, the Bar has launched a public education campaign to promote better understanding of the constitutional role of the courts and the separation of powers.
“If you don’t like the decision because that’s what the law says,” Bookman argued, “then you go to the Legislature and change the law.”
Carl Jones can be reached at cjones@alm.com or at (305) 347-6648.
Harris Meyer can be reached at hmeyer@alm.com or at (305) 347-6617.
PHOTO CREDITS
Illustration by Matt Morrow. Justice Kenneth B. Bell photo by Bruce Graner. Justice Raoul Cantero III photo by Aixa Montero. Rep. Rafael Arza photo by Mike Foley.
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