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Crying out against the justices isn't answer

Published January 8, 2006

It has become the usual thing, when you lose a big court case these days, to attack the judges.

It is not possible that one simply lost. The judges must have been "activist." They were using "ideology" instead of "just following the law."

When you win, of course, the judges were wise. They showed "restraint."

This past week, the Florida Supreme Court ruled 5-2 that our state Constitution does not allow the private school vouchers that Gov. Jeb Bush and the Legislature set up in 1999.

This is a hot political issue. Most Democrats, teachers unions and so forth hate using tax dollars to send kids to private schools, especially religious schools. Most Republicans and conservatives like it.

So, when it threw out vouchers, was the Florida Supreme Court just being political? Was it ignoring the state Constitution?

That is what Tom Gallagher says. Gallagher, our state's chief financial officer, is running for governor. He is a Republican. He called the ruling "judicial activism based on ideology and not the law."

Gallagher added that if he gets to be governor, he will name Supreme Court justices who "follow the rule of law as opposed to legislating from the bench."

Now, in truth, the Florida Supreme Court has issued a few awful opinions over the years. Downright wickedly bad, even.

But this ain't one of them. Not by any stretch.

This case was, to borrow from baseball, a close play at the plate. There was good work done on both sides of the opinion. The dissent by Justice Kenneth B. Bell is one of the better I have read - clear, vigorous, sharply written.

Here is the gist of the case. Our Constitution says the state must make "adequate provision" for the education of all children. Next we come to the killer sentence:

Adequate provision shall be made by law for a uniform, efficient, safe, secure and high quality system of free public schools . . .

So, does "adequate provision" mean using public schools ONLY? Is the state barred from paying private schools too?

That's how five justices read it.

Maybe that's wrong. But it is not wild-eyed, goofy wrong. It is not "ideology," and it is not "legislating from the bench," or any of that.

Justice Bell, in his dissent, pointed out that the words of the Constitution do not explicitly ban giving tax dollars to private schools. In fact, such a ban was proposed, but specifically not adopted.

Bell zeroed in on two other weaknesses in the majority opinion. What about vouchers that send disabled kids to private schools? The majority weaseled out by calling it a "special case." Bell said (my paraphrase) that he would sure like to know what is special and what isn't, and who is gonna decide - more judges?

The majority also opened a can of worms by saying that private schools aren't "uniform," as the Constitution requires. Bell noted that the court has now claimed the power to second-guess what is "uniform" in our schools. Yikes!

Finally, the Supreme Court ducked the crucial question of whether it is okay to give tax dollars to religious schools at all. The court said it didn't need to decide. Boo! Florida deserved an answer.

So in the end, I guess I liked the dissent better. But that doesn't mean we get to stand up and lob grenades. Politicians trying to whip up the mob casually accuse courts of ignoring the law, when in fact that is the gravest charge you can make against a court under our Constitution.

"I am disappointed by today's Supreme Court ruling," Gallagher could have said. "Although I respect and will abide by the court's interpretation of our Constitution, I had hoped and believed it would rule otherwise. Regardless, I will continue to work for opportunity and choice for the children of Florida."

That is the tone to take when you seek to lead a government of laws, instead of attacking it for short-term ends. One day, Gov. Gallagher's own power might well hinge on the legitimacy of a court ruling. On that day, he will thirst for the public to accept judicial legitimacy like a man crying out in the desert. It has happened before, you know.

[Last modified January 8, 2006, 00:43:05]

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