A Conversation with Former Florida Chief Justice Barbara Pariente

In February 2024, the Brennan Center for Justice, State Court Report, and the NYU Law Review hosted a symposium dedicated to state constitutional law. Several state supreme court justices who participated in the program sat down for brief interviews with State Court Report, which we are publishing as a series.

Barbara Pariente joined the Florida Supreme Court in 1997 and served as chief justice from 2004 through 2006. In her interview, she reflected on some of the most memorable cases from her time as a justice, expressed dismay at the current court’s decision that the state constitution does not protect abortion rights, and observed that the public is “losing confidence” in the U.S. Supreme Court as it “step[s] away from precedent.”

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Erin Geiger Smith: What are some decisions you participated in when you were on the Florida high court that are most memorable to you?

Former Florida Chief Justice Barbara Pariente: The Terri Schiavo case in 2004, which involved a brain-damaged woman who was being kept alive artificially, is among the most memorable. It was very sad, but our judicial branch really performed admirably. The case came to the Florida Supreme Court after then-Governor Jeb Bush, at the request of Ms. Schiavo’s family, asked the legislature to pass what was called Terri’s Law. It was a one-time law to essentially reverse the trial court ruling that life-sustaining efforts for Ms. Schiavo could be terminated. Our court, in a 30-day period, unanimously ruled the law was unconstitutional because it violated separation of powers. If the legislature could overturn final judgments, there would be no sanctity of law and no stability.

I was the on the Florida Supreme Court during the time of Bush v. Gore in 2000. The court’s televised proceedings in that case were watched all over the country, and even the world. I felt that our court really handled itself well, despite what the U.S. Supreme Court ultimately decided.

[Ed. note: Following the 2000 election, the Florida Supreme Court ordered a partial manual recount of that state’s U.S. presidential election ballots, in accordance with state law, as George W. Bush led Al Gore by only several hundred votes. The U.S. Supreme Court in Bush v. Gore halted the recount, allowing the Florida secretary of state to declare Bush the winner of the state and, as a result, win the presidency.]

Geiger Smith: What is something that people might not know about the Florida Constitution?

Pariente: The state constitution has numerous amendments added by citizen initiative. One that might be seen as quirky is the right to humane treatment for pregnant pigs. It’s quite ironic, considering what’s going on now with reproductive rights.

Geiger Smith: In an article you wrote for Slate, you expressed dismay that the current Florida Supreme Court disregarded precedent in its recent opinion finding the state constitution does not protect the right to an abortion. Why do you see that as a problem?

Pariente: One of the bulwarks of judicial decision making has always been respect for precedent. That was drilled into me when I served on the Florida Supreme Court. There were decisions that had been reached earlier that I disagreed with. But we, as a court, respected the precedent unless it was clearly erroneous.

What this current supreme court has done is blatantly disregard precedent and eviscerate our privacy amendment. The court, by a vote of 6–1, ruled that the state constitution’s privacy amendment does not apply to personal autonomy, overturning decades of precedent that explicitly held that the privacy amendment protects abortion.

As it stands right now, the privacy amendment essentially has no meaning, other than perhaps informational privacy.

Geiger Smith: Did anything else stand out to you about the Florida Supreme Court’s handling of the abortion issue?

Pariente: What was really shocking to me was the concept of fetus personhood, which came up in oral arguments and in the court’s opinion allowing a proposed constitutional amendment that would protect abortion to appear on the ballot this fall. While I was on the court — which was for more than two decades — there were cases regarding abortion and the privacy amendment. And not once did any of my colleagues or the lawyers arguing for the state ever bring up fetal personhood or suggest that the privacy amendment did not extend to abortions.

Geiger Smith: You mentioned the proposed constitutional amendment. This fall, Florida voters will choose whether to amend the state constitution to protect abortion rights. Do you have any thoughts about the proposed amendment?

Pariente: The proposed amendment, which will be on the ballot this November, says that “no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.” This would restore a woman’s right to choose as it existed under Roe v. Wade. I believe that would be an important step for Florida, which currently has a six-week ban in place.

Geiger Smith: What role do courts play in protecting or expanding rights?

Pariente: Courts are not supposed to be proactive, but have a vital role in protecting individual rights. Courts should honor and respect constitutional rights. When I was in law school in the early '70s, I understood the role of courts was to protect constitutional rights, especially and in particular individual rights. Not anymore. The Florida Supreme Court is taking cues, I imagine, from the U.S. Supreme Court, and stepping away from precedent. To many this trend appears to be motivated by politics. And it has had the effect of the public losing confidence in the U.S. Supreme Court and its decisions.