Florida Supreme Court allows abortion & marijuana ballot initiatives; overturns abortion protections

Isn't it possible Muniz was simply incorrect then, and is correct now?

I don't expect some sort of mea culpa for having a different opinion after 20 years, especially when the original opinion was from a law review article, not binding case or statutory law.

 

Partisan elections are better than the non-partisan ones for judges. Too easy to conceal information from the public, I have to do time-consuming research just to find out who's endorsed by the federalist society, for example. With a partisan election, you know what you are getting, even if its informed by obnoxious politics. I dont see how your panel of experts wouldn't be tainted by politics either, because who's putting them on this panel in the first place? As long as judges have the power to nullify laws and legislate from the bench unaccountable to the public, politics would inform their selection. Too much at stake to leave that to chance in a country where you can just spend money willy nilly without restriction to game the system. Its why the FedSoc exists in the first place, to discipline judges as part of a political project. At least elections give the public a remedy. They arent perfect by any means, but in our system given their outsize power, its the best way IMO.

 

Also possible he's an unprincipled careerist and just lying back then because that was the consensus view on the state constitution

 

That would be the cynical view.

But I also find it a problem that he felt the need to lie about his views in the first place if your read of the situation is correct.

 

Flawed originalist thinking is superior to thinking with no guiding principle.

This isn’t necessarily “rejecting” originalism. It’s probably a case of either someone’s opinion on something dramatically changing over time or feeling the need to express views in a law review article that he did not subscribe to.

 

I think its pretty cynical to reverse yourself, knowing full well you dont have to say anything, and choosing not to, even to appease the non cynics who still think of judges as non-politicians. Just flaunting raw power (on the same day you cover your ass allowing the question on the ballot - it certainly shows a politicians instincts).

 

In this case you dont have to imagine what George Washington or some British guy in 15th century England thought, this all happened in many people's lifetimes, and it is all written down lol.

 

Is it standard for people to provide an explanation for a reversal from a law review article they wrote?

It probably would be if it was case law, but a law review article isn’t case law.

 

There are debates between originalists, textualists, and everything in between. Should you value the meaning of the text, should you value the intent of the text.

Either way, at least they try to be bound by some anchor that serves as a guiding principle. It’s easy to play the skeptic when you follow no guiding principle and align with the side that serves no guiding principle apart from empty platitudes and modern progressivism (a constantly shifting door).

Criticize originalists and textualists all you want. At least they go out on a limb. You can never scrutinize living constitutionalists to the same degree because they are anchored by no defined guiding principle. Stare Decisis is not absolute, and the Constitution means whatever they want it to mean. Some certainly try to be fairer than others, but we are ultimately at their mercy.

 

Ok, but what is even originalist about stuff that happened in the 1970s/80s? I'm nothing and its easy to trace Griswold/Roe, the invocation of privacy on matters like contraception/abortion, to the adoption of that language in state constitutions. Like everyone knows why that's in the state constitution, you don't even have to recreate some past, it happened when lots of people still living were alive, including some of the judges on the bench. Like, they could just cite Dobbs and call it a day.

 

Also, it’s noted in the opinion itself, but it appears as though the Dobbs decision played a role in the analysis regarding the scope to the right of privacy.

Which makes sense because 20 years ago, Roe and Planned Parenthood v. Casey were still the law of the land. And if the language in the Florida Constitution related back to the language of these cases, in the event those cases were overturned, it would make sense that a reasonable court could narrow the meaning of that right to privacy in accordance with the Dobbs decision for example.

To me, it’s the never-ending text vs. intent debate. The Dobbs opinion seemed to hold that Roe was always incorrect, which would imply that the privacy language would no longer hold if interpreting by the exact meaning of the text, because the interpretation from Roe was never correct.

The intent argument of course is more challenging, because if they modeled the language from these pro-abortion decisions, it would logically follow the intent from the framers here was to include the protections from these pro-abortion privacy rulings.

 

Thank you. When you look at the history surrounding the adoption of our privacy amendment, abortion protection was at the very forefront. Also worth noting is the number of prior decision they had to back off from.

True justice for this would be for enough pro-choice turnout to flip the state blue.

 

If originalism applied, then that should uphold the "protects abortion" part of the state's guarantee of privacy, since that was its original intent. Nullifying it because the federal judiciary killed Roe, isnt originalism, its what you might call judicial activism, the kind of thing that adhering to an originalist posture is supposed to prevent.

 

It’s “textualism” relying on Dobbs, not judicial activism.

 

Its not that either, Dobbs really has nothing to do with the state constitution since it didn't make abortion illegal and left it up to states. Simply a pretext to change the original meaning of the state's text. There's really no supremacy argument to make here.

 

It does if the privacy language was modeled after one of the abortion cases that Dobbs overturned.

It’s not “changing” the original meaning. It’s saying “the original interpretation of the meaning of the text was incorrect,” almost exactly the same thing that the court in Dobbs did.

 

Not if the language in the Florida Constitution relied on cases overturned by Dobbs.