Florida Supreme Court Follows the Marbury Model: Executive Violated the Law, but Finds Remedy Is "Legally Unavailable Under These Circumstances"

And what a way to welcome a new colleague: an opinion stating that she was appointed illegally!

|The Volokh Conspiracy |

Generations of law students learn to venerate Chief Justice Marshall's opinion in Marbury v. Madison: he found that President Jefferson violated the law, but the Court lacked authority to issue the requested remedy. Political genius, right? Alas, far too many students learn, from the first week of class, that this sort of ju jitsu is the ideal form of judging. (Not my students). A young John Roberts no doubt enjoyed that day of ConLaw class. (Who are we kidding, Roberts developed a crush on Marshall as soon as the young pup learned to read.) And, it seems that the Justices of the Florida Supreme Court may have learned a similar lesson.

Yesterday, SCOFLA decided Representative Geraldine F. Thompson v. Governor Ron Desantis. The introduction concisely explains the issue:

Representative Geraldine Thompson wants us to undo Governor Ron DeSantis's appointment of Judge Renatha Francis to fill a vacancy in office on this Court. Thompson argues that the Florida Constitution requires Judge Francis to have been a member of the Florida Bar for ten years at the time of the appointment, which Judge Francis undisputedly was not. Thompson asks us to invalidate the appointment, require the judicial nominating commission to certify a new list of candidates, and order the Governor to appoint someone from the new list.

The Governor did exceed his authority in making this appointment. In a nutshell, when a governor fills by appointment a vacant judicial office, the appointee must be constitutionally eligible for that office at the time of the appointment. But that is not the end of the analysis, because the remedy Thompson seeks is legally unavailable under these circumstances. There is no legal justification for us to require a replacement appointment from a new list of candidates, rather than from the one that is already before the Governor.And the correct remedy(an appointment from the existing list of eligible nominees) would be contrary to Thompson's stated objectives in filing this case. Therefore, we hold Thompson to the remedy she requested and deny her petition.

Poor Representative Thompson. She sought mandamus in the original jurisdiction of the Supreme Court, received a favorable ruling, but didn't get what she wanted. Sounds familiar, huh? William Marbury could not be reached for comment.

And what a way to welcome Justice Francis to the court: The Court held her appointment was illegal, but nothing can be done about it! This opinion must be the iciest welcome to a high court since a member of the U.S. Supreme Court bar challenged Justice Black's appointment. (See Will Baude's excellent discussion of Ex Parte Levitt).


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  1. Alas, far too many students learn, from the first week of class, that this N sort of ju jitsu is the ideal form of judging. (Not my students).

    I’ll bite.

    What is the magic truth you tell to the suckers who shell out 35 grand for an “education” at one of the worst law schools in the country?

    1. `I’ve made $66,000 so far this year w0rking 0nline and I’m a full time student.oiu. I’m using an 0nline business opportunity I heard about and I’ve made such great m0ney.CMs It’s really user friendly and I’m just so happy that I found out about it.

      See……..>> Click here

  2. The Court was pretty specific that not only something could be done about the illegal appointment, but what that something was: “the correct remedy” would be to order “an appointment from the existing list of eligible nominees”.

    1. Considering what the “correct remedy” is is a question of law, and that concessions on matters of law by parties don’t bind courts, why doesn’t the court just do it anyway?

  3. My Con Law professor, like you, worshipped the Marbury decision. “And now,” he said, in his pompous over-the-top delivery, getting to the part where the decision says it’s the Court’s function to say what the law is, “Marshall hits one out of the park.”

    ? There wasn’t even a pitch. Marshall wasn’t even in the game. He was playing tiddly winks at the local bar. The VC’ers are always on the lookout for “judicial power grabs”, but this was the worst.

    1. Marshall was being unethical. He was one of the main actors in the controversy. He should have recused himself.

    2. Once he decided that the Court had no jurisdiction, he should have shut up. Instead he kept talking. The entire “principle” of judicial view was based on dicta. Marshall himself later held that this part of Marbury, being dicta, was not binding. See Cohens v. Virginia, 19 U.S. 290 (1821).

    3. Even his declaration that it’s the Court’s function “to say what the law is”, was dicta within dicta. He was merely discussing the powers of the Supreme Court. It was no different than John Jay telling George Washington that the Court couldn’t issue “advisory opinions”. For a Court to opine only on its own powers is a very evanescent kind of “judicial review”.

    OK, back to the mindless cheerleading.

  4. “SCOFLA”


    Undoubtedly not the first to make this connection.

  5. Representative Thompson May be barred from refilling the suit and asking for the correct remedy but no one else is. Anyone not a party to the original lawsuit should be able to file a new suit.

    1. One would hope that :

      (1) the Judge resigns, and
      (2) the Governor has another try

      before anyone else has to file a new lawsuit.

  6. Alas, far too many students learn, from the first week of class, that this sort of ju jitsu is the ideal form of judging. (Not my students). A young John Roberts no doubt enjoyed that day of ConLaw class. (Who are we kidding, Roberts developed a crush on Marshall as soon as the young pup learned to read.)

    This is the comedy option right? The old saw of railing against a nemesis who doesn’t even know you exist?

    Marbury being a clever political decision that nevertheless set up our tripartite separation of powers is not the same as Marbury being the height of jurisprudence. I don’t think anyone teaches that.

  7. As the U.S. Supreme Court has no binding recusal requirement, what would happen if an appointment to it were challenged, and the “questionable-appointee” were the deciding vote to uphold?

    Could you have each side claiming victory, based on whether they deem that “deciding voter” to actually be a member of the court in the first place…?

  8. If somebody else doesn’t do it first, I would expect anyone who lost a case where Francis cast the deciding vote would ask for the correct remedy in a rehearing petition.

  9. It appears Francis is only slightly short of ten years. The prudent course might well be for the Governor to wait the month or so until the ten years are up and then simply re-appoint her, and for her not to assume office or do anything official until that happens.

    The dispute seems to be about whether the 10 years are up at time of appointment or time of assuming office.

    With this in mind, it’s not such a big dispute as it first appeared.

  10. Boy, you distort cases and history to get what you wanted. It wasn’t that Justice Marshall couldn’t issue the mandamus it’s that the Court found the issue before it to not be justiciable because the law that created jurisdiction was contrary to the constitution. Courts have been telling the President what to do at many points throughout history.

    Blackman just because you don’t agree with them doesn’t mean that they are cowards. We both know your crush is with Thomas and Scalia two men who hold no principles and are willing to throw originalism out the moment its an issue they care about.

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