Two or Three (.net)

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Runaway Judiciary and Terri Schiavo

by Tom Parsons [+/-] show/hide

Regardless of whether you believe Congress was correct in attempting to intervene in the Terri Schiavo case the fact remains that they did intervene and in doing so gave very specific directions to the courts on how to proceed with her case. As Rich Galen points out today, the legislation passed by the Congress required Ms. Schiavo's feeding tube to be reinserted and a new trial be set to determine all of the facts surrounding her case. In spite of these very clear directions, the courts continue to flagrantly disregard the wishes of Congress.

One of the lasting impacts of this case will be the effect that it has on the judiciary. Certainly this case will help President Bush and Republican Senators make the case that activist judges are dangerous and should be kept off the bench. Judges are supposed to not just interpret the law but enforce it as well. Federal judges are subject to the authority of Congress. In fact, if Congress wanted to they could begin impeachment hearings against the federal judges that have failed to follow the mandate given by Congress. It will be interesting to see whether the House decides to proceed with impeachment hearings once this case has concluded. But judges everywhere should be on notice that they are still accountable to a higher authority even though they often behave as if they are not accountable to anyone.


  • I agree with you - I am not sure how i feel about the federal intervention. As I mentioned, this excellent NPR interview discusses the historical precident for such actions, but argues that it may not be constitutional.

    What I agree with is that the courts should be intrepreting and enforcing the law as determined by the Legislature, not defying it. I hope some judiciary heads roll when this is all over.

    By Blogger papa, at 3/25/2005 9:48 AM  

  • It's fascinating how religious conservatives demonize our legal system when they don't get their way.

    Here's some REAL legal analysis to correct the nonsense written here.

    From Ann Althouse's blog. Ms. Althouse is a law professor at the University of Wisconsin, a conservative and Republican:

    I watched a number of the cable TV news analysis shows last night (and in the last few days), and I am appalled at the failure even to raise the most basic legal point about the statute Congress passed. Time after time, I heard people -- like Fred Barnes on Fox News's "Special Report" -- say that everyone knows that Congress intended to give Terri Schiavo a de novo hearing, in which the federal court would disregard everything the state courts have done, and that the federal courts ignored the statute that Congress went to such extraordinary lengths to pass. Those who took the other side of the question and supported what the federal courts did kept making statements about how wrong it was for Congress to want to disregard the work of the state courts, how Schiavo's plight shows why one ought to have a "living will," or why Schiavo is really better off dead. Christopher Hitchens did an especially abysmal job on "Hardball," repeatedly saying that Schiavo was "brain dead" and that there simply was no life even to be talking about.

    Regardless of what people like Barnes think Congress intended, the federal courts were given a statutory text to follow, and the fact is they followed that text. Yet the TV commentators -- at least what I heard -- never made this most basic point. Barnes and his ilk relied on material in the second part of the statute, headed "Procedure." That section gives Terri Schiavo's parents standing to bring a lawsuit and says:

    In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.

    But the SUBSTANCE of the statute -- as opposed to the procedure -- is in Section 1:


    The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo FOR THE ALLEGED VIOLATION OF ANY RIGHT OF THERESA MARIE SCHIAVO UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

    Those procedures outlined in Section 2, including the authority rehear claims de novo, apply to the "suit or claim" provided for in Section 1. Read the boldface text: the statute only authorized the parents to bring federal law claims. It gives no authority to redo the state law claims, which is what the state courts relied on in appointing the husband as the decisionmaker and so forth.

    The parents' complaint in federal court had only a few skimpy federal claims to make, and the federal court denied preliminary relief because there was very clearly no "substantial likelihood of success on the merits" on these federal claims. The main federal claim was a violation of due process, which had to include consideration of the quality of the state court's work. The federal courts in no way flouted the federal statute. It's irrelevant that Congress managed to make people think it was doing things that it never put in the statutory text.

    By Blogger Louis, at 3/25/2005 3:31 PM  

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