Federalist Society Report Debunks Florida Conservative Media Campaign Against Justices

Sunshine State News, Florida's self-proclaimed “only center-right news source,” has dedicated extensive coverage to the conservative charge of “judicial activism” against three state Supreme Court justices facing a retention election in November. The author of a Federalist Society report on the justices' records debunked the charge on Wednesday, telling The Miami Herald that opponents of the justices will “have a hard time” making the “activism” label “stick.”

On Election Day, voters in Florida will vote on the merit retention of three justices on their state Supreme Court. The three justices, Barbara Pariente, R. Fred Lewis, and Peggy Quince, have drawn the ire of the Florida Republican Party and conservative activists for a series of decisions on state ballot initiatives, criminal procedure, and property taxes.

The Sunshine State News has extensively covered the issue in a way that promotes the right-wing case against the three, which centers on the accusation of “judicial activism.” Over the past month, the Sunshine State News has published multiple articles in a series titled, “How Activist Are Florida Supreme Court Justices Pariente, Lewis, and Quince?”

The “judicial activism” framing of the issue mirrors the charges leveled by right-wing political opponents of the justices. Conservative super PAC Americans for Prosperity is leading an ad campaign accusing the justices of acting in an “activist manner.” The state Republican party took the unprecedented step of formally opposing the justices' retention because the “collective evidence of judicial activism amassed by these three individuals is extensive.” Although the Sunshine State News articles in the series purport to allow readers to review court documents and “decide for themselves” on the accuracy of the “activism” charge, its promotion of the issue has contributed to the cause of the justices' opponents.

But a new report commissioned by the Federalist Society, an organization previously hailed by the Sunshine State News as the “nation's premier fellowship for conservative and libertarian lawyers and law students,” undercuts these right-wing accusations. After analyzing the three justices' “nine most controversial cases,” the report concluded the justices were not engaged in “unprincipled” behavior. This Federalist Society report now adds to the extensive bipartisan opposition to removing the three Florida justices from office.

From The Miami Herald's reporting on a conference call with the report's author, Florida International University Professor of Law Elizabeth Price Foley:

A Florida professor commissioned by the conservative Federalist Society to review controversial cases of the three Florida Supreme Court justices up for merit retention concluded Wednesday that some of the most loaded charges used by opponents against the justices are unfounded.


Although the Federalist Society does not take a position in the merit retention races, Foley said in a conference call with reporters that her review found that the controversial rulings “are in fact supported by some prior precedent and they do involve acceptable methods of legal reasoning.”

Opponents who want to accuse them of judicial activism, she said, are "going to have a hard time making that label stick.''

Unsurprisingly, opponents of the justices were upset by the conclusions of the report, but Professor Foley has remained firm in her findings, according to the Herald:

Americans for Prosperity Florida, the conservative advocacy group affiliated with the Koch brothers, were not too happy with a Federalist Society report issued Wednesday that concluded some of the most loaded charges used against the justices up for merit retention were unfounded.


[Professor Foley still] disagrees with opponents to the justices who call them activists just because their decisions may be formed by a liberal ideology rather than a conservative one.

“That is ridiculous,'' she said, noting that under that logic justices whose decisions are formed by a conservative ideology could also be called ”activist." She also assiduously avoids use of the term “activist” because, she said, it has been so overused everyone has a different definition of it.


She added that she may have been too subtle in her conclusions that the justices, like all humans, inform their decisions by their ideology "but they are not in fact acting in an unprincipled way,'' she said.