Round I for the Eight Gutsy Kids

On June 1, 2020, Florida Circuit Court Judge Kevin Carrol “reluctantly” dismissed the complaint filed by the 8 gutsy kids more than two years ago. For background, check out my April 18, 2018 blog, Uprising on the Court House Steps.

After a three-hour “Zoom” video-conference hearing, Judge Carroll said his decision was based on the fact that the kids were asking the court to solve our climate crisis, which is the responsibility of the legislature and the executive branch. Carroll said “This is not a matter for the court. I regret to have to tell you this. I don’t want anyone to thing I am diminishing what [the kids] concerns are. I think they’re legitimate.” The judge said he would write his ruling so that it is ripe for appeal. He wished the children luck.

The legal technicality underlying the Judge’s opinion is known as the “Political Question Doctrine,” which Black’s Law Dictionary defines as “A question that a court will not consider because it involves the exercise of discretionary power by the executive or legislative branch of government.”

Debates as to what the Constitution means, and whether or not there are “political questions,” are not something new. The debates have been around since the days of the Founders. Perhaps the most famous early controversy about the Court’s authority was between John Marshall, appointed as Chief Justice in 1801 by John Adams just before he left office, and our third President Thomas Jefferson (1801-1809). In the 1803 case of Marbury v. Madison, Marshall’s Court opined that the Supreme Court had the right to decide if federal or state laws violated the Constitution. Marbury and subsequent Marshall decisions (his Court decided more than 1,000 cases in his 35 years, with Marshall writing half of the opinions) firmly established the idea that the Federal judiciary system was independent and co-equal in responsibility to the executive and legislative branches. Jefferson disagreed with Marbury and the role of the Court, seeing it as less consequential. Jefferson’s idea was that the Court’s authority to overturn laws conflicted with the peoples’ right to rule. (Jefferson, however, was not faced with the politics of today’s Democracy of Dollars, where the influence of lobbyists, not the people, prevails.)

Over the years the debate about the role of the Supreme Court has continued. Archibald Cox wrote in 1967, in his The Warren Court (the Court when I was in law school, 1964-67):

What role should the judicial branch play in the government of American people? Should the court play an active, creative role in shaping our destiny, equal with the executive and legislative branches? Or should it be characterized by self-restraint, deferring to the legislative branch whenever there is room for policy judgment and leaving new departures to the initiative of others? Under Marshall the court staked an active role in government, building up the power of the federal judiciary in shaping the relationship between the nation and the states according to Marshall’s nationalism. … [In reaction to judicial activism], there developed the theory of judicial self-restraint with which the senior generation of lawyers was generally indoctrinated. The theory sprang from the soil of the old Jeffersonian philosophy…: ‘You must seek correction through the political process, for the judiciary to intervene would be a denial of self-government.'”

As Cox points out, when it comes to fundamental Constitutional, human rights, judicial restraint is too frequently a “no answer,” for the restraint “closes the political process to particular ideas or particular groups, or otherwise distorts its operation. Then the correction must come from outside and no violence is done to the principle of representative government if the court supplies the remedy.”

“Ideally, the federal judicial branch ought not to enlarge its own jurisdiction simply because Congress and the state governments failed to solve the problem confided in them….The ideal remedy is to reform the delinquents. But government is more pragmatic than ideal. In a practical world there is, and I suspect has to be, a good deal of play in the joints. If one arm of government cannot or will not solve an insistent problem, the pressure falls on another.”

Examples:

• Our Constitutional right to “privacy,” always important, but more important in this age of electronic intrusions, was found by the Warren Court in the “penumbra” of rights surrounding the Constitution, not in the Constitution itself. The late Justice Scalia has written that because the words aren’t in the Constitution, we have no Constitutional right of privacy. I am sure very few of us would agree with Scalia. I discuss the issue in detail in an earlier blog: Belief Checker.

• Florida’s Constitution, Article II, Section 7(b), adopted in 1996, provides: “Those in the Everglades Agricultural Area who cause water pollution within the Everglades Protection Area or the Everglades Agricultural Area shall be primarily responsible for paying the costs of the abatement of that pollution.” The Florida Supreme Court opined that the provision is not “self-executing” and requires legislative action to be enforceable. With the exception of a 2020 bill dealing with algae pollution of Florida’s waters, the Florida legislature has never acted, and taxpayers, not the polluters, are stuck with the cost.

• Floridians amended Florida’s Constitution to restore felons’ voting rights. The Florida legislature passed a law that prohibited voting by felons unless all their applicable court costs were first paid. The law was challenged in the Federal Court as being unconstitutional. The judge withheld action while the legislature was in session so that it would have time to act; when the legislature didn’t act, the judge ruled: “[T]his order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs.” The judge also said:

“Why is it that all the Republicans voted ‘yes’ and all the Democrats voted ‘no’? That is not a coincidence. It would be stunning if somebody told me that they did not realize that African-Americans tend to vote Democratic more than Republican.”

The judge did it right: he waited for legislative action; when none came, the political issue was subordinated to fundamental rights and the wish of the people, reflected in a Constitutional Amendment overwhelmingly approved.

The assumption of the Defendants in Reynolds v. State, the case of the 8 Gutsy Kids, is that even with the evidence presented about climate change and its harm and dangers to the Kids (essentially confirmed by the Judge in his remarks), the Legislature has the right to ignore the evidence, or decide that other matters weigh against addressing the evidence. That position assumes that our children have absolutely no fundamental or constitutional right to life and liberty – and to a climate system that is not polluted with the effects of CO2. From one of the Defendant’s briefs:

“Moreover, even with compelling evidence that there is anthropogenic climate change, the Legislature may decide that other matters, such as employment opportunities, resource development, or power generation, should be weighed against the evidence.”

After an intense study of the Political Question Doctrine, I conclude:

The political questions that should be addressed by our judicial system include at least individual rights that are Constitutional, fundamental, inherent to life itself, and are not addressed by, or are abused by, the legislature or executive branches.

How many deaths or cancer cases from CO2 pollution are permissible before a political question about our climate system is no longer a political question?

Nor should the legislature or executive branch be entitled to decide that it’s okay to continue to pollute our waters or soil with chemicals that destroy the ability of life to obtain clean water and food.

How many people are permitted to die or become diseased from lead poisoning before the right to pollute with lead poison is no longer a political question?

Nor should the legislature or executive branch be entitled to take action – or ignore taking action – that causes vast portions of the entire state to be submerged under rising seas.

How many people must lose their homes, their businesses or their lives – or how many communities must lose their tax base based on sunken lands, fleeing tourists, and flooded businesses that no longer operate – because of rising seas before rising seas is no longer a political question?

The fact that the Gutsy Kids claim to a stable climate system isn’t word-specific in the Constitution, or requires executive or legislative action to fill in the details of implementation, doesn’t mean a righteous claim to a stable climate system does not exist, or that the Court cannot act. Like the right to privacy, the unspecified rights to a stable climate system lie in implication of the words of the Constitution and, like privacy, are in its penumbra. The Court can act as it did in Brown V. Board of Education of Topeka, Kansas, where the Court took charge in declaring what the Constitution required and ordered the political branches to reform policies that had championed discriminatory education of black children and other minorities.

Either we have fundamental rights or we don’t. For those fundamental rights the legislature does not have the right to compromise or destroy or limit them; the Executive Branch does not have rule-making authority to deprive us of those rights. Those rights clearly have political implications but are not political questions which courts cannot hear and resolve when the legislature and executive branch are engaged in damaging action or inaction. They are absolute, essential for life itself.

Take Article II, Section 7(a) of the Florida Constitution: “It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources.”

Now, 7(a) is a statement of pure policy, and it obviously require legislative action. However, this policy speaks of “shall” – requiring positive action. That means something is to be done within the boundaries of its expressed concern by the Florida legislature; yet there has been totally inadequate legislative action. Should not the citizens of Florida, who enacted the Constitution for their benefit, have the right to petition the judiciary to order the legislative branch to perform its constitutional duties? Listen to the 3-minute video introducing this blog. That is a prime concern of the Gutsy Kids.

To breathe life into the Constitution, inaction – a “no” answer- should not be constitutional when the Constitution uses “shall.”

Inaction is anti-shall action and should not be permitted.

Jane Goodall’s statement, “We are each difference makers and we have to decide what kind of a difference we want to make” reminds me of the fact that doing nothing is a form of difference making.

There is no reason for the Court to hide behind a political question argument when faced with these sorts of questions about human rights. What is called for is action consistent with the mandate of the Constitution. Doing nothing is not Constitutionally permissible.
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CLICK ON THE PHOTO BELOW TO LINK TO OUR 3-MINUTE VIDEO ABOUT WHAT EIGHT GUTSY KIDS ARE DOING AND WHY.

Eight Gutsy Kids


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From Our Children’s Trust: The Fight Continues in Florida for Youth Climate Change Plaintiffs
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The transcript of the court hearing on the State’s Motion to Dismiss is available for listening on Facebook.

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Bob
2 months ago

Ricardo:
 
   Alas, re the dismissal.  In addition to being a political question, we all know it’s fast becoming a survival question, an economic question, a money question. It mirrors the tobacco industry’s choke hold on efforts to control the sales, use and control of smoking.
   Of course, the courts will come around – when it’s too late.

Hugh
2 months ago

What issue is not, too much so, a “political question” these days? 
Main reason the majority has lost confidence in the establishment

Barbara & Paul
2 months ago

These kids will continue to fight and I wish them the best.👍

Debbie
2 months ago

The legislative branch does not seem to be for the people but for their campaign donors and they are the ones voting on the presidentially appointed judges. So, again the campaign donors win and we lose. I don’t have much faith in the legal system at this point, the Florida Supreme Court or the Federal Supreme Court. Everything is politicized these days, the virus, the protestors of police brutality and the protestors to open the states back up, Travon Martin, Climate change, Russia, China, Israel, religion, even God has be co-opted by a political party. America is a reality show… Read more »

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