Congress Clears Its Throat

By Hartnett, Edward A. | Constitutional Commentary, Winter 2005 | Go to article overview

Congress Clears Its Throat


Hartnett, Edward A., Constitutional Commentary


The Schiavo case involved many difficult issues including diagnosis, prognosis, causation, intent, procedural due process, substantive due process, and litigation strategy. This article does not address any of those complex issues, (1) but instead discusses the Act of Congress providing for federal jurisdiction and the remarkable opinion issued by Judge Stanley F. Birch, Jr., finding that Act unconstitutional. Although not a single one of the other ten circuit judges who participated in the case joined his opinion-and two specifically rejected it--Judge Birch's opinion attracted considerable attention. Andrew Cohen of CBS News, for example, praised Judge Birch as "the only true unvarnished hero" in the case. (2)

The opinion is remarkable in a number of ways. It decries judicial activism, but goes out of its way to conclude that an Act of Congress is unconstitutional. It emphasizes judicial duty to the law, but neither discusses the legal standard applicable to the decision then before the court nor even supports the vote that Judge Birch casts on that decision. It makes far-ranging and unsupportable legal assertions, but takes nearly all of them back in response to Judge Tjoflat's dissent. Despite its remarkable flaws, Judge Birch's opinion nevertheless does serve to bring into focus significant concerns about singling out for federal jurisdiction an individual case already decided in state court.

On March 21, 2005, the President signed into law an Act for the Relief of the Parents of Theresa Marie Schiavo. (3) That act did not create any substantive rights, but instead provided for federal jurisdiction in the United States District Court for the Middle District of Florida over "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." (4) The act also provided standing for Schiavo's parents, called for a de novo determination notwithstanding state proceedings, and prohibited delay, abstention, or imposition of an exhaustion requirement. (5)

On March 22, the District Court denied a motion for a temporary restraining order, and a panel of the Court of Appeals for the Eleventh Circuit affirmed the next day. (6) On March 25, the District Court denied a second motion for a temporary restraining order, and a panel of the Court of Appeals again affirmed. (7) Schiavo's parents petitioned for rehearing en banc, and on March 30, the Court of Appeals denied the petition. (8) Judge Birch concurred in the denial of rehearing en banc and wrote an opinion concluding that the Act for the Relief of the Parents of Theresa Marie Schiavo, signed into law nine days earlier, was unconstitutional. (9)

I. JUDICIAL ACTIVISM

When courts of appeals deny rehearing en banc, they rarely issue opinions. Indeed, they rarely even report individual votes, instead simply reporting that the requisite majority did not vote in favor. In the Schiavo case, five of the eleven participating judges revealed and explained their votes. Three of them explained why they did not vote in favor of rehearing en banc; (10) two explained why they did vote in favor. (11) The majority of judges, as is traditional, neither revealed nor explained their vote. Judge Birch spoke out. (12)

Judge Birch begins and ends his opinion with a discussion of judicial activism, and defends his actions as avoiding judicial activism. For some, the term "judicial activism" is an empty epithet, meaning little more than that the one who hurls the term disagrees with a particular decision or line of decisions. (13) While there is little doubt that some use the term this way, (14) it is nevertheless "a helpful category" if used with some care because "it focuses attention on the judiciary's institutional role rather than the merits of particular decisions. …

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