Threatening the Balance — and the Fabric of our System

It should come as no surprise that I believe that government is, by its very nature, tyrannical and that the fact that those in power happen to be popularly elected presents little safeguard from government’s tyrannical tendencies.

So if having popularly elected government officials does not offer much protection from the predilections of government, what does? One time tested mechanism is the separation of powers. By keeping governmental power and roles separate, a democratic society is more likely to survive than if all of the power were concentrated into a single group. Years ago while speaking at Stetson University College of Law, in oder to make this same point, Justice Antonin Scalia read from the Soviet Union’s Constitution. The rights guaranteed under that document would have made any American proud – there was nothing there that we as Americans would disagree with. Justice Scalia’s point was that the true genius of the American Constitution laid not in the rights it purported to guarantee but rather in the separation of powers, because it is that separation that has served as a check on government’s tyranical tendencies.

Which brings me to the dangerous and arrogant proposal made yesterday by Florida’s House Speaker, Dean Cannon. Mr. Cannon a vocal critic of the Florida Supreme Court, now seeks to split the Supreme Court into two, five member courts, one focusing on criminal cases and the other on civil. The wisdom of reducing the deliberative body from seven to five justices escapes me other than with less members there is presumably greater opportunity to control outcome.

It is also difficult to understand why during such difficult economic times, the Speaker would think revamping the Court in such a way makes sense. Clearly such a proposal, if approved by the voters, will lead to significant increases in costs. For starters, you have three additional justices to compensate, not to mention staff and physical plant considerations.

Just the fact that one branch of government is threatening the very nature of another branch is of significant concern to me but the reasons given by Cannon are so incredible that it is hard to address them and maintain civility. According to the Sarasota Herald-Tribune, Cannon said, “This is a thoughtful structural reform that I believe will improve the administration of justice, help unclog our civil dockets and help make sure our criminal justice system doesn’t make mistakes.” What? How exactly is lowering the number of justices deciding a case from seven to five going to eliminate mistakes? It strikes me that on its face, seven wise and learned justices deliberating the merits of a position are more likely to arrive at the right result than diminishing their ranks by two – if two brains are better than one, seven ought to be better than five.

The Sarasota Herald-Tribune goes on to report Cannon as saying, “More people are dying on Death Row of natural causes than of lethal injections now. So, clearly there is an efficiency problem on the criminal side.” Wait, I thought the purpose of the change was to ensure that no mistakes were made? On the bright side, I guess at least on this point, Cannon told the truth – his interest is not in that mistakes be eliminated, at least not when it comes to killing somebody; his interest is in making sure that those condemned are executed at a speedier pace.

But my intent is not to debate the merits of the death penalty — speedy or not (at least not today). My purpose to ensure that we as citizens stay keenly aware that we have remained a republic for over two hundred years based in large part on the balance of power at the core of our governmental structure and inherent in that is an independent judiciary. That independence has to be free from threats from the other branches.

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