In an exclusive interview with Sunshine State News, Professor Elizabeth Price Foley of Florida International University College of Law condemns what she insists were "misleading" early media stories on a report she authored on three Florida Supreme Court justices up for retention on the November ballot.

The report – titled “A Review of the Florida Supreme Court: 2000-2012” and published on behalf of the Federalist Society for Law and Public Policy Studies, the nation's premier fellowship of conservative and libertarian lawyers and law students -- is being hailed by supporters of the justices as some sort of vindication of their record on the bench. Justices Barbara Pariente, R. Fred Lewis, and Peggy Quince are accused by their critics of being left-wing activists who do not rule in accordance with the principles of originalism, the doctrine that judges ought to interpret law according to its original public meaning.

Foley’s report is a review of nine rulings over the past 12 years which she says are among the justices’ “most controversial.” Foley does say that “there does not appear to be a pattern of unprincipled decision-making by any of the justices of the Florida Supreme Court.” However, she goes on to say that “[t]here are ... discernible voting patterns on the Florida Supreme Court and they seem to be based on the general ideological leanings of the justices.”

Although the report nowhere uses the terms “activist” or “originalist,” the Miami Herald summarized its contents thusly: “Florida justices are not activist.” A blog post by the leftist media watchdog Media Matters for America (MMfA), featuring Sunshine State News’ coverage, was even more explicit: “Federalist Society Report Debunks Florida Conservative Media Campaign Against Justices”

Sunshine State News interviewed Foley on her report, its conclusions, and the characterization of those conclusions by center-left media outlets. Here is that interview in full:

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Your report is being hailed, in the media, as some sort of vindication of the justices. Are these characterizations accurate?

No. The report was meant neither to vindicate nor condemn these justices. The report explicitly stated that it would not draw any such conclusions because its purpose was to describe, not criticize or persuade. Readers have to draw their own conclusions.

I do believe the early media reports were misleading in several respects.  First, several reports contained a headline to the effect that the report concluded that these three justices were not activist. The report reached no such conclusion. Second, the report stated explicitly [p.18] that the nine cases examined did reveal that the three justices had discernible voting patterns based on their ideological leanings. And third, the reports de-emphasized a critical aspect of the report, which is that Florida's judicial retention elections are not "merit" retention elections. The word "merit" appears nowhere in the Florida Constitution. And while the Florida Bar and others may have its own idea about what constitutes "merit" of a judge, that idea is not binding on the voters of Florida, who are free to cast their vote for any reason they wish. As I point out in the report,one relevant factor may indeed be a judge's ideology, and a voter is free to cast a vote for nonretention simply because they conclude that the judge's ideology is "wrong" or not good for Florida.

The word "originalism" (or some form of it) does not appear anywhere in your report. 

Correct. Nor does it use the word "activist."

In your opinion, are the justices up for retention "originalists"?

In my opinion, these justices are not originalists. They do have a discernible liberal ideology, which lends itself to an interpretive methodology in which a judge is more comfortable straying from a text's original meaning. 

If an activist is defined as a non-originalist, is it accurate to say these justices are, in fact, activists?

If one wishes to define activism this way, then yes, these justices would be activists. I assiduously avoided using the "activist" label in the report precisely because it has been overused and misused so much that it has become virtually meaningless. Various groups espouse their own definitions of this word. It has gotten to the point where the word "activism" is hurled at any judge who renders a decision with which the accuser disagrees. Liberals have accused conservatives of being activist, and vice versa. But these three justices studied in the report are clearly ideologically liberal. Whatever label one chooses to further place upon one who embraces a liberal ideology is, it seems to me, an individual determination.

Do you consider your report to be, directly or indirectly, a "debunking” of Sunshine State News' reporting on the justices, or of the advocacy of Restore Justice 2012 and Americans for Prosperity against their retention?

Not at all. As the introduction to the report states, the Federalist Society is a nonpartisan institute engaged in fostering a serious dialogue about legal issues in the public square. The report was designed to describe, not to persuade. Voters must make their own decisions as to whether these three justices -- or any other judges up for retention -- are worthy of their vote.  

Thanks for the opportunity to respond!

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Sunshine State News asked representatives of Restore Justice and Americans for Prosperity how they defined “judicial activism.”

“We consider an activist judge to be somebody who interjects their own politics into their decisions, instead of ruling based on the original meaning of the law,” Jesse Phillips, the president of Restore Justice 2012, which is opposing the justices’ retention, tells Sunshine State News. “In one of the early iterations of our campaign, we gave ourselves the tagline: Citizens for an Independent, Originalist Judiciary.”

“Judicial activism has nothing to do with whether a judge is a conservative or a liberal,” Abigail MacIver, director of policy and external affairs at Americans for Prosperity Florida, told the News. “It has nothing to do with a judge’s political ideology; it has to do with whether they allow that ideology to skew their decisions when they’re ruling on court cases. We would support any decision that is made through an original construction of the [governing law], even if it was opposed to our personal position on a policy being considered. It’s not the outcome of a case that makes a judge activist or not, it’s what gets those judges to those outcomes.”

Sunshine State News also spoke with Clark Neily, senior attorney at the Institute for Justice, a libertarian public interest law firm. Neily was one of the lawyers who argued before the Florida Supreme Court on behalf of school choice, before the court (including Justices Pariente, Lewis, and Quince) issued its controversial landmark ruling in Bush v. Holmes, which struck down Florida’s private school vouchers as being contrary to the state Constitution.

“I would tend to describe [Bush v. Holmes] as a non-originalist ruling,” Neily tells the News. “I don’t think that the majority’s opinion in that case likely reflects either the intentions or the understanding of the people who added [Article IX, Section 1] to the Florida Constitution. I would not consider it to be an originalist decision, and do not think very highly of its reasoning.”



Reach Eric Giunta at egiunta@sunshinestatenews or at (954) 235-9116.