This past month, Governor Desantis made three appointments to the Florida Supreme Court, Justices Lagoa, Luck, and Muñiz, to join Canady, Polston, Lawson and Labarga. For those of us who practice appellate law, particularly before the Florida Supreme Court, this is a huge change in composition of the court that should have a significant impact on the cases that are bought, and how cases are argued before the Court.
For the first time in my professional life (I have been a member of the Florida Bar since 1996) a majority of Justices on the Florida Supreme Court can be described as legally conservative. While many articles have been devoted to defining the parameters of the legal conservatism, a shorthand understanding of this would be, in the context of the federal constitution, whether a jurist perceives the constitution to have a meaning fixed at the time of its adoption, subject to change by amendment, or instead a living constitution, subject to the changing winds of society by decree and not amendment. A legal conservative also understands that Congress must be authorized to act by the the Federal Constitution, and conversely, state legislatures are fully authorized to act in the absence of a specific constitutional limitation.
Because the Florida Supreme Court has not had a conservative majority in the last Century, this provides an opportunity for good appellate advocates to preserve and raise valid arguments at the trial courts, that might in fact be contrary to existing precedent, so that the Supreme Court Court may consider overturning or receding from prior precedent that was not well founded. It also means that arguments appealing to ideology and emotion are less likely to prevail.
Over time this will be good for Florida and the Courts: there may be some initial instability created when bad precedents die, but more predictability and certainty is a hallmark of a legal system that is a rule of law and not of men. The days of advising a client that “based on the law you have a good case, but. . .” should be in the past.
Make sure your legal case is evaluated and litigated under the legal framework likely to pass Florida Supreme Court muster.