I have, like most Americans, been inundated with press coverage on the Schiavo case in Florida. Probably unlike other media and posters, I don't want to talk about whether she should have her feeding tube re-inserted or not, that issue has been talked to death.
Rather, I find fascinating the governmental, constitutional, and public perception issues that have either tangentially affected the matter or have been central to the case. On an initial level, one thing bothers me about this case more than any other, the overwhelming attention paid to the case. While tragic to be sure, the decision faced by the courts and the family differs in no way from the thousands of other cases involving the termination of life support for patients with no hope of recovery. Courts and judges are called upon to make these kinds of decisions on a frighteningly regular basis. Yet, those other decisions, as fraught with drama and tension as the Schiavo decision, are made in the private chambers and courtrooms, far from the prying eyes of the media and would be moral leaders. What may set this particular case apart is the status of Terri Schiavo--that fact that she is in a persistent vegetative state, but her other autonomic functions, like cardiac, respitory and digestive systems continue to operate without machinery. That and her age, along with the efforts of her parents to publicize the story (and they have not matter what their lawyer says).
Another matter I have found intriguing has been the interplay between the various branches and levels of government. By legal tradition and necessity, local and state courts exercise jurisdiction over family law matters and for good reason. Local judges maintain a closer connection to the community they serve than federal judges, while at the same time having the competence to decide issues involving state and federal law. The U.S. Supreme Court has explicitly ruled that state judges have just as much knowledge and competence to decide issues involving federal law as it is the same U.S. Constitution for everyone. See Michigan v. Long, 463 U.S. 1032 (1983). Thus Judge Greer in Pinellas County not only possessed the competence but the duty to ensure Mrs. Schiavo's federal rights were protected.
The progression of the case through the court system, both state and federal is rather unremarkable. Many cases take years to make their way through the courts, though, admittedly I am not sure about family court matters such as this one. What has been interesting is the willingness of the legislative and executive branches, on all levels to get involved in this, in the grand scheme of things, local, family law dispute. The Florida legislature and Congress passed laws specifically relating to the Schiavo case. I am not sure of Florida's rules for private legislation, but Congress's role has routinely been limited to issues related to federal benefits, land grants and other matters related to direct transactions with citizens. Despite the assurances that the Terri Schiavo Act does not have precedential value for Congress in a legal sense, it surely does in a practical sense.
Of course, Congress, according to the Constitution, has the right to define the subject matter reviewable by the federal courts, a power it has exercised before in a broader sense. For example, Congress has, over the course of our history, routine increased the threshold amount of money necessary in a dispute to be considered for federal jurisdiction, assuming all other factors are present. This prudential and practical power enables the Congress to help the judiciary handle its case load. However, the passage of the act earlier this week by Congress, represents the first time that I know of where a specific case--not a type of case, but a specific case--has been placed into the jurisdiction of the federal courts. Again, while Congress has this power, there is wisdom in not exercising the power. By placing the case in the federal court's jurisdiction, Congress, acting in a political manner, exacerbated an already tense situation and brought criticism upon itself for no particular advantage to the institution.
The truly fun part of the move by Congress lies in the possibility that the District Court and Judge Whittemore could have ruled the bill an unconstitutional intrusion on states rights and the ability for state courts to determine what state law says. Yes that is right, Judge Whittemore could have said Congress crossed a constitutional line and decided to not review the plea for a temporary restraining order. But at least one person in the federal government acted with responsibility, Judge Whittemore decided to deny the plea rather than hiding behind a constitutional technicality. Interestingly, Judge Whittemore's actions were doomed to criticism no matter what his decision. Had he ordered the re-insertion of the feeding tube he would have been hailed as a hero by the conservative right and demonized by the left for being an activist judge. By denying the injunction, the conservative right has labeled him as evil and heartless. The left is silent.
But Judge Whittemore and everyone else who takes an oath to uphold the Constitution is bound by the same rules of law. No matter what your thoughts on the result, Judge Whittemore's decision is proper. Schiavo's parents have a bad case on the merits. That is not a criticism of their love for their daughter. Rather, they simply have a bad case on the federal level. As has been pointed out, the case has been through dozens of courtrooms, all populated with judges mindful of their duty to ensure both federal and state rights are vindicated for Terri Schiavo. All Judge Whittemore said is that the judges in the state courts did their job. There simply does not appear to be any ground in the merits of the case under which the parents would succeed. If you think this was an easy decision to make, just read the last paragraph of Judge Whittemore's opinion--which he undoubtedly stay up all night writing.
Yesterday and today, Schiavo supporters have been calling on Governor Jeb Bush to take custody of Schiavo and re-insert the feeding tube. Such a move would have almost certainly landed the governor in hot water for violating the law. One commentator thought such an action would lead to impeachment for the Governor, but I find that unlikely. However, had Governor Bush done so, he would have been guilty of violating both a state court order and a federal court order, the consequences of which remain unclear. As a constitutional officer, Governor Bush has a responsibility to uphold the law, even if he doesn't like. The Florida legislature tried to get a law to protect Schiavo in the past couple of days, but failed to do so.
Had the Governor, or the President, acted in a way demanded by the far right, a constitutional showdown would have occurred, one whose outcome, if we are indeed a nation of laws, would have resulted in a real loss for our country. The executive branch would, under the law, lost, but the fact that a small and vocal minority would have blamed the courts, the judiciary would have lost just as much.
Finally, I have found that lack of understanding of Americans and many talking heads in the press about the basic functioning of American government. To be sure, as a law student, former lobbyist and student of government, I don't expect the average American to understand all the nuances, but surely the concept of judicial review, of limits on the power of government and the basic purpose behind the court system should be in the knowledge base of all Americans. But the one thing this episode has shown be is that such knowledge is lacking. The Judiciary, even the most activist of judges, is not in the business of making decisions without a foundation in law. The, sometimes vitriolic, attacks on Judge Greer and Judge Whittemore have been made from ignorance, a simple lack of understanding of the role of judges in our society. Sometimes these men and women are called upon to make the decisions we not equipped, or unable, to make. It doesn't make the decisions any easier just because they are judges nor should the fact that their duties require them to make decisions we lack the courage to make ourselves be the basis of attacks on their qualifications or actions. The judges did what we require of judges, if you don't like it, make the decision yourself and see how easy it is.
Similarly, many Americans don't seem to understand the relationship between the judiciary and the executive. The legislature passes laws, the courts interpret the laws and the executive enforces them. The calls for the executives to reach beyond their powers belies a fundamentally flawed understanding of the executive in the system of checks and balances we have. For our system of law and government to work, the executive branch is as beholden to carry out the decisions of the judiciary as much as the laws passed by the legislatures. The executive has the luxury of disagreeing with the judicial decisions, but lacks the luxury of disregarding the decisions. Governor Bush, President Bush and all the other executive branch officials out there cannot just pick and chose the laws they want to enforce, including judicial decrees with the force of law, they must enforce them all.
Sadly, it has taken the case of Terri Schiavo to bring all of these problems into the stark light of public understanding. Of course, I don't expect most Americans to take away all the lessons of this episode, but if they take away one of the lessons to be had, we will be a better country. Also, I think we need to do a better job educating our kids about government, but that is the subject for another rant.
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