Judges must continue to make tough decisions

JUSTICE JAMES E.C. PERRY
GUEST COMMENTARY

This November, Floridians will vote on whether to retain three Florida Supreme Court justices and fifteen District Court of Appeal judges.

They’re not on the ballot because they did something wrong; rather, it’s just business as usual under Florida’s merit retention system, which requires that all Florida Supreme Court justices and appellate court judges appear on the ballot in six-year cycles based upon when they were appointed by the governor.

Here’s the purpose
As a current member of the Florida Supreme Court, I can neither support nor oppose fellow justices or any of the appellate court judges on the ballot. However, I can speak out about the purpose of merit retention and ask that when you go to the voting booth, you consider the importance of a separate judicial branch in our system of government.

Our system is built on a foundation of “checks and balances” and “separation of powers.” It is much like a stool delicately balanced on three legs.

One leg is the legislative branch, which makes the laws.  Our Florida Legislature passes laws covering a broad range of topics affecting just about every aspect of our lives and taking up almost 11,000 pages of small type.  That’s a lot of power.

Another leg of the stool helps balance that power. The governor – who has the authority to veto laws and keep them from going into effect – heads the executive branch, which implements the laws.  To enforce and implement the laws that do go into effect, the governor presides over more than two dozen agencies. Again, that’s a lot of power.

The third leg of the stool helps balance the legislative and executive branch power combined. The judicial branch is charged with interpreting laws and constitutional provisions. That means that the judicial branch can strike down a law that was passed and implemented by the legislative and executive branches, even if the law is very popular.

Some laws illegal
The problem is that even popular laws can offend the very foundation of our society – the Constitution.  A great example is Brown v. Board of Education, a 1954 legal case in which Black children had been denied admission to schools attended by White children under laws requiring or permitting segregation according to race.

Brown was so unpopular it led to riots.  But mob rule does not govern our country; the rule of law does. A core constitutional principle is the protection of the powerless from “the tyranny of the masses.”

The justices in Brown could address that tyranny without fear of being kicked off the court, as United States Supreme Court justices are appointed for life.  Their independence was assured because they were insulated against political or popular pressure or retaliation.  They could do their jobs properly precisely because they were without fear of losing them.

But Florida Supreme Court justices and appellate court judges face a merit retention vote every six years.  Some suggest that they should be voted out of office for making certain difficult decisions.

While politicians in the other two branches are elected to follow the “will of the people,” the judicial branch must follow the Constitution. So when you vote, I hope you’ll consider that sometimes Florida Supreme Court justices and appellate court judges have the absolute responsibility at times to make difficult decisions in order to uphold core constitutional principles that in the end serve and protect us all.

Three in unity
Their ability to be fair and impartial and at times make unpopular decisions ensures that all three legs of the stool – the legislative, executive, and judicial branches – remain in balance.  Cut one leg of the stool short, and it all crashes to the ground.

Make no mistake.  It’s not just about the Florida Supreme Court justices and appellate court judges on the ballot. It’s much bigger than that. The integrity of the entire judicial branch – and therefore, the overall balance of our state’s government – is in play.

Will Florida Supreme Court justices and appellate court judges in the future hesitate to make difficult decisions that they believe are required of them if their colleagues have been voted out of office for doing just that?  You be the judge.

Justice James E. C. Perry was appointed to the Florida Supreme Court by Gov. Charlie Crist and took office on March 11, 2009. Click on this story at www.flcourier.com to write your own response.