Certain Florida media seem obsessed with how the appointment of Judge Brett Kavanaugh to the U.S. Supreme Court could affect abortion law. Their dire stories and columns appear aimed more at evoking emotions than educating readers about potential changes in the legal system.
How disappointing. The appointment of originalists like Judge Kavanaugh could set abortion on a course to be settled by what those same media often champion as the truest decision maker: the ballot box. Yet for them that democratic outcome somehow loses its virtue when it comes to this morally mired matter of conscience.
Let’s focus on some underreported angles, with perhaps an occasional dose of oversimplification.
The U.S. Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey interpreted the federal constitution to contain a right to choose abortion. They found it in the Fourteenth Amendment’s Due Process Clause, which states, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Every abortion law in the country is now scrutinized under the legal framework created by those decisions.
If President Trump’s latest nominee is confirmed, then arguably a majority of the court’s justices will be originalists—persons who interpret constitutional text to mean what it originally meant, often by examining what those who adopted it understood it to mean, and applying that meaning to present circumstances. An alternative approach would be to define constitutional text using the evolving values of the present day, as perceived by the person making the interpretation, even if doing so gives the text meaning that no one thought it had when it was adopted. Some call that the progressive approach, or “living constitutionalism.”
Originalism is a humble judicial philosophy. It does not seek power or attempt to elevate the judge’s personal perception of contemporary values into the supreme law of the land, unchangeable except by constitutional amendment.
It recognizes that the political power to decide important issues lies with the people when they approve constitutional language, not in the preferences of those who happen to hold judicial office when the time comes for a court to consider that language’s meaning.
It is a liberating view of government because it leaves to elected leaders, such as members of Congress and state legislatures, the freedom to change the law consistent with their legislative powers and the preferences of the people who elect them.
With respect to due process, nearly all scholars agree that the language was not understood to limit the ability to regulate abortion or anything of the sort. An originalist approach would recognize this historical fact and whittle away at, if not ultimately reject, the rulings in Roe and Casey.
Doing so would not decide whether or when abortion is permissible. It would simply say that the federal constitution does not answer such questions. The result would be that abortion would once again become a public policy matter to be addressed by the states, generally through their elected legislatures, rather than a constitutional matter to be decided by unelected judges based on language never meant to bear on the subject.
But even if the U.S. Supreme Court ruled tomorrow that the federal constitution is no bar to states regulating abortion, the Florida legislature would not have a free hand. The same dynamic seen in Washington with the federal constitution has played out in Tallahassee with the state constitution.
Unlike the federal constitution, the Florida Constitution sets out a right of privacy. The Florida Supreme Court has interpreted that right to place significant restrictions on the legislature’s power to regulate abortion in Florida, far more so than the U.S. Supreme Court has interpreted the federal constitution to limit all states’ ability to regulate abortion.
But Florida is just months away from the January 2019 retirement of three of the state’s seven supreme court justices. Each of those three follows a progressive approach to constitutional interpretation, and the judicial philosophy of their replacements will determine how the Florida Supreme Court reviews abortion regulations for years to come.
Appellate judges in Florida are appointed by the governor, and Rick Scott has been a vocal proponent of originalism as the proper approach to constitutional interpretation. Because of multiple timing issues, it is unclear at this time whether Scott or a successor will appoint the retiring justices’ replacements.
What is clear is that, under Florida’s constitution, the appointments must come from lists provided by a judicial nominating commission. For each vacancy, the commission must nominate three to six persons to fill the seat. Scott will have appointed every member of that commission. A solid majority of them will share his views regarding the importance of appointing originalists.
So if Scott has shaped a nominating commission that insists on originalists, and the new justices must be picked from those nominated by that commission, does it matter if the actual appointments are made by Scott or his successor? No, not unless the commission nominates non-originalists, and the chances of that happening are extremely low. It is not as if Scott’s team has not seen this situation coming. Nominating commission members are carefully selected.
If events play out in this manner, then three originalists will begin serving on the Florida Supreme Court in January 2019. They will join Governor Scott’s 2016 appointee, Justice Alan Lawson, making four of the seven justices the product of Governor Scott’s originalist push. Considering that two of the remaining three justices are well known conservatives Charles Canady and Ricky Polston, it would be no understatement to say that the 2019 changes will transform the court.
Expect far less social direction from the court than has been seen in recent decades and far more deference toward the decisions of the elected legislature, into whose hands the Florida Constitution places all power to legislate. Arguments about what the law should be, rather than what it is, will be far better received by the legislature than the supreme court.
Of course, our judicial heritage places great weight on precedent, and therefore overnight changes in longstanding judicial case law are by no means assured. Under the doctrine of stare decisis, answers to legal questions become settled in a court once that court decides them. There are exceptions, however, and at both the federal and state levels, individual justices’ views on when stare decisis can be overcome will likely determine the extent to which past decisions are overruled, if they are overruled at all.
Concerns that originalist justices may give deference to past progressive decisions based on stare decisis should give Florida’s legislature reason to be measured in any efforts to test the state supreme court’s new judicial makeup. After all, unlike the federal constitution, the text of Florida’s constitution actually contains a privacy right, and the judiciary must give it meaning. A legislature interested in reducing the number of abortions in Florida might be well advised to begin with narrow, popular restrictions, supported by clear and comprehensive findings, to give the new court a chance to find its comfort level with correcting past decisions.
The rise of originalist courts may be discomforting to those who have grown accustomed to judges setting all manner of social policy. Under originalism, matters not originally intended to be addressed by the federal and state constitutions are simply not constitutional concerns. They are public policy concerns to be resolved by the people and their elected representatives. How marvelously democratic.