I have sharply criticized judicial elections, but at least that method gives voters some say in what rights they are granted. What’s happened in recent days in Florida and Arizona is the predictable and intended result of a different and more insidious form of politicization of the judiciary: court-packing by Republican governors.
The effectiveness of that tactic was on vivid display this week in Arizona. For more than a half-century, the state had five Supreme Court justices. Then came Republican Gov. Doug Ducey. In 2016, the Republican-controlled state legislature — over the objections of the sitting justices — expanded the court to seven. As a result, Ducey was able to name five of the seven justices sitting today; the other two were named by his Republican predecessor, Jan Brewer.
Ducey rejected suggestions that he was engaging in court-packing, noting that an independent merit selection panel screens candidates and sends recommendations to him. But as a prescient 2020 Politico Magazine story recounted, Ducey made it a goal to shift the Supreme Court to the right. When the judicial nominating commission rejected the application of Bill Montgomery, a prosecutor allied with former Maricopa County Sheriff Joe Arpaio, Ducey replaced the three commissioners who had voted against Montgomery — and proceeded to name Montgomery to the high court.
That effort paid off — or backfired — this week. The court reinstated Arizona’s 1864 abortion law, which prohibits the procedure except to save the life of the mother. After initially resisting calls to step aside, Montgomery recused himself on the basis of previous statements he had made on abortion, including calling Planned Parenthood, a party in the case, “responsible for the greatest generational genocide known to man.”
But four Ducey appointees were still left — and they voted as a bloc to revive the Civil War-era abortion law. The majority professed to be following a course of judicial restraint. “A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process,” wrote Justice John R. Lopez IV. “Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written.”
Of course, the “citizens” whose judgment the court respected didn’t include women — they couldn’t vote in 1864. Arizona wouldn’t become a state for another 47 years.
The Arizona court didn’t have to come out this way, even after the U.S. Supreme Court eliminated the right to abortion in Dobbs v. Jackson Women’s Health Organization. In 2022, as the Supreme Court was considering Dobbs, Arizona passed a new law — it didn’t take effect until after Dobbs was decided — that prohibited abortion, “except in a medical emergency,” after 15 weeks. There was no hint in that measure that this new law would suddenly become inoperative if Roe were overturned. No “trigger” mechanism, like those adopted in other states, provided that the 1864 law would spring back to life if Roe were overruled.
The majority’s contention to the contrary rests on an accompanying “construction provision” stating that the 2022 law didn’t repeal the earlier ban. As the dissenting justices noted, however, the legislature could have easily said it wanted to revive the absolute abortion ban if Roe were gone. “Undoubtedly, the legislature knew how to use trigger clauses because it has explicitly inserted them into other abortion-related session laws,” the dissent said.
This isn’t judicial restraint — it’s judicial activism. And now Arizona Republicans are reaping what Ducey and his allies sowed.
The same is happening in Florida, although the goings-on there have received less attention. Like Arizona, all seven justices on the Florida Supreme Court were named by Republican governors, five by Gov. Ron DeSantis.
The governor has made reshaping the judiciary a central part of his tenure — “Judicial activism ends, right here and right now,” DeSantis pledged in his inaugural address — and his picks have shifted the court sharply to the right. “A newly constituted, conservative court,” with appointments “I hoped would judge in the mold of U.S. Supreme Court Justice Clarence Thomas,” DeSantis wrote in his book.
Hence, the latest pair of abortion rulings this month from the Florida Supreme Court. In one case, the court rejected a challenge to the state’s 15-week abortion law — a decision that effectively allows a new, even stricter six-week ban to go into effect. In the second case, the court permitted a proposed constitutional amendment to protect abortion rights to appear on the November ballot.
This may sound like a split-the-difference approach. Don’t be fooled. In the ballot measure case, three dissenting justices, all appointed by DeSantis, raised the question, not posed by the advocates themselves, of whether and how the Florida constitution protects the rights of fetuses — a claim of “fetal personhood” that came up in the Alabama in vitro fertilization case and that is the next frontier in the legal abortion wars.
“The exercise of a ‘right’ to an abortion literally results in a devastating infringement on the right of another person: the right to live,” wrote Justice Renatha Francis. “And our Florida Constitution recognizes that ‘life’ is a ‘basic right’ for ‘all natural persons.’ One must recognize the unborn’s competing right to life and the State’s moral duty to protect that life.” Justice Jamie Grosshans, joined by Justice Meredith Sasso, said it wasn’t yet clear how Florida’s constitutional protections “apply to the unborn and, if so, what the scope of those rights could be.”
That’s just three. But a fourth DeSantis appointee who ruled to allow the ballot measure to go forward, Chief Justice Carlos G. Muñiz, raised the question of fetal rights at oral argument, and an ominous footnote in the majority opinion noted that the “constitutional status of a preborn child … presents complex and unsettled questions.”
In other words, don’t count on us upholding your ballot measure even if it does get the required 60 percent vote. So much for letting the people decide.
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