I’ve been a harsh critic of judicial elections, but at least this method gives voters some say in what rights they’re entitled to. What has been happening in Florida and Arizona in recent days is the expected and intended result of another, more insidious form of judicial politicization: court-packing by Republican governors.
The effectiveness of that tactic was on vivid display this week in Arizona. For more than half a century, the state had five Supreme Court justices. Next up was Republican Gov. Doug Ducey. In 2016, the Republican-controlled state legislature expanded the court to seven courts over the objections of sitting judges. As a result, Ducey was able to name five of the seven justices present today. The other two were named by his Republican predecessor, Jan Brewer.
Mr. Ducey rejected suggestions that he was involved in court-packing, noting that an independent merit selection committee screens candidates and sends recommendations to him. But as a prescient 2020 Politico article detailed, Mr. Ducey’s goal was to shift the Supreme Court to the right. After 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. We proceeded with the process of nominating him to the high court.
This week, that effort either paid off or backfired. The court reinstated Arizona’s 1864 abortion law, which prohibits abortions except to save the mother’s life. Montgomery initially resisted calls for his resignation, but he has since spoken out about his past comments on abortion, including calling Planned Parenthood, the party involved in the case, “responsible for the greatest generational genocide known to humanity.” He retracted his statement based on the grounds.
But four of Ducey’s appointees remain, and they voted as a bloc to reinstate Civil War-era abortion laws. The majority professed to follow a policy of judicial detention. “Policy issues of this magnitude must ultimately be resolved by the people through the legislative and initiative process,” Justice John R. Lopez IV wrote. “Today, we refuse to make this momentous policy decision because such judgment is reserved for the people. It only follows limited constitutional roles and duties.”
Of course, the “citizens” whose judgment the court respected did not include women. Women did not have the right to vote in 1864. Arizona would not become a state for another 47 years.
Even after the U.S. Supreme Court struck down abortion rights in Arizona, Arizona courts were not required to reach this conclusion. Dobbs v. Jackson Women’s Health Organization.2022 as considered by the Supreme Court Dobbs Arizona passed a new law – it didn’t go into effect until then Dobbs It was decided to ban abortions after 15 weeks “except in medical emergencies”. There was no hint in the measure that the new law would suddenly stop working if: egg It was turned upside down. There is no “trigger” mechanism as employed in other states. provided, however, that the Act of 1864 is reinstated in the following cases: egg Rejected.
The majority’s argument to the contrary is based on an accompanying “interpretive clause” that says the 2022 law does not repeal the previous ban. But as the dissenting justices pointed out, the Legislature could easily have said it wanted to reinstate the absolute ban on abortion if: egg It was gone. “There is no question that Congress knew how to use the trigger clause because it explicitly inserted it into other abortion-related acts of Congress,” the opponents said.
This is not judicial restraint, but judicial action. And now Arizona Republicans are reaping what Ducey and his allies have sown.
The same thing is happening in Florida, but what happens there doesn’t get much attention. As in Arizona, all seven justices on the Florida Supreme Court were appointed by Republican governors, including five by Governor Ron DeSantis.
The governor has made reforming the justice system a central focus of his term, and DeSantis vowed in his inaugural address that “judicial activism will end here and now.” And the governor’s choices shifted the court sharply to the right. DeSantis wrote in his book that he had been appointed to a “newly established conservative court” and hoped to “serve as a judge in the mold of U.S. Supreme Court Justice Clarence Thomas.” ” he wrote.
Hence the two latest abortion decisions handed down by the Florida Supreme Court this month. In one case, the court rejected a challenge to the state’s 15-week abortion law, effectively allowing a new, stricter six-week abortion ban to go into effect. In the second case, the court allowed a constitutional amendment to protect abortion rights to appear on the November ballot.
This may sound like a split-diff approach. Don’t be fooled. In the voting law case, three dissenting justices, all appointed by DeSantis, argued that the question, not raised by the advocates themselves, was whether and how the Florida Constitution protects the rights of unborn children. “The personhood of the fetus” was raised. Alabama’s IVF case is the next frontier in the legal abortion war.
“Exercising the ‘right’ to abortion literally results in a devastating violation of another’s right, the right to life,” Justice Renatha Francis wrote. “And our Florida Constitution recognizes that “life” is a “fundamental right” of “all natural persons.” We must recognize the competing rights to the life of the unborn child and the moral obligation of the state to protect that life. ” Justice Jamie Groshan, joined by Justice Meredith Sasso, wrote that Florida’s constitutional protections “explain how Florida’s constitutional protections apply to unborn children and, if so, what the scope of those rights are.” It is not yet clear whether this will happen, he said.
That’s only three. But Chief Justice Carlos G. Muniz, the fourth person appointed by Mr. DeSantis to rule allowing the ballot measure to proceed, raised the issue of fetal rights during oral argument and made the majority opinion ominous. A footnote points out, “What is the constitutional status of newborn infants?” Children…have complex and unanswered questions. ”
In other words, don’t expect us to support your ballot measure even if it receives the required 60 percent of the votes. So much for letting people decide.
