by hilzoy
There are many aspects of the Terri Schiavo case about which I do not have clear views. (My original post on this topic seems to have given people the impression that I did; but what I was really trying to do in that post was just to say what I took the relevant issues to be, since I thought they had been mischaracterized.) I have no views about the characters of the principals in the case, since I don’t know them, and since in general I try not to leap to conclusions about people based on their conduct when they are grieving. I have no knowledge of what Terri Schiavo would have wanted other than that summarized in the various decisions on that topic. In general, all the information I have about the actual facts of the case is derived from court documents and some media reports; and that leaves me thinking that one of the few things I can be certain of is that when it comes to those facts, I am not in a particularly good position to judge.
But there are some things I do feel more confident of, since they do not depend on factual matters of which I am ignorant. And one of them is this: the judges in this case have followed the law. I am not a lawyer, of course. But I have read the decisions and statutes, and it seems pretty clear to me that the law has been followed. Moreover, as I said somewhere, no one that I know of has questioned the competence of the lawyers or the number of appeals that the various parties have received. Below the fold I will detail the statutes bearing on the central points at issue, so that those who are lawyers can let me know whether I am wrong. (I’m putting this part later because it is long.)
If I am right about this, then there’s something that really puzzles me, namely: why are so many conservatives saying that this case is about judicial activism? Here’s Bill Kristol: “Perhaps it is time, in mature reaction to this latest installment of what Hugh Hewitt has called a “robed charade,” to rise up against our robed masters, and choose to govern ourselves. Call it Terri’s revolution.” Here’s Ann Coulter: “What was supposed to be the “least dangerous” branch has become the most dangerous – literally to the point of ordering an innocent American woman to die, and willfully disregarding congressional subpoenas. They can’t be stopped – solely because the entire country has agreed to treat the pronouncements of former ambulance-chasers as the word of God.” Thomas Sowell: “Judges who ignore the laws passed by elected representatives are slowly but surely replacing democracy with judicial rule.” Alan Keyes: “Despite the outward appearance of deliberation, what we witness now as an ongoing feature of the conduct of the judiciary at every level amounts to a judicial riot, in which judges and justices take it upon themselves to disregard the prerogatives of the other branches in order to assert an exclusive and tyrannical control of public standards and conduct.” And those are just the quotes I found first, without even canvassing the blogs.
In some cases, I think it’s because the courts did not grant a temporary restraining order despite Congress’ intervention. (More on that below.) But in some cases — for instance, in the Coulter quote above — the idea seems to be that this entire case is the result of renegade judges. And if I’m right about the law, then this is completely wrong. There are all sorts of features of existing Florida law which one might argue in favor of changing. But the people to whom such arguments should be addressed are the legislators, not the judges. No one who rejects judicial activism should say, with John Gibson of Fox News, that our chief executives should “protest the complete disregard courts and judges have shown here, in this case, for facts outside the law.” (Emphasis added.)
As I see it, in this case the judges have stuck to the law scrupulously, despite enormous political pressure. (Surely it has occurred to some of them that their chances of being appointed to a higher judgeship by the Bush administration have gone glimmering.) Their job is to interpret the law, and they have done so. For this they deserve our thanks, not our condemnation. For while I have a different view of interpretation than, say, Sebastian, and thus disagree with him about how to draw the line between interpreting a law and rewriting it, I am as convinced as he is that judges should be in the business of interpreting existing laws, not writing new ones. And it seems to me that that is what the judges in this case have done. As Matt Conigliaro of Abstract Appeal wrote:
“I receive email after email telling me that no judge has the authority to end someone’s life. That life must be preserved where there is even unreasonable hope, or where there is any uncertainty regarding the person’s wishes. That oral evidence can never be clear and convincing. That removing “life support” is okay, but removing a feeding tube is barbaric and unacceptable. Perhaps those sentiments are noble, but they are not the law, and it was not within Judge Greer’s power to make them the law. It is perfectly acceptable to disagree with the law on these points, but to condemn the judge for following the law as it exists is irresponsible and contrary to the basic principles on which our government, with its separate branches, was created.”
Moreover, we should absolutely not urge either citizens or politicians to defy them, as the following commentators do:
William Kristol, already quoted: “Perhaps it is time, in mature reaction to this latest installment of what Hugh Hewitt has called a “robed charade,” to rise up against our robed masters, and choose to govern ourselves. Call it Terri’s revolution.”
John Gibson, Fox News: “So Jeb, call out the troops, storm the Bastille and tell ’em I sent you.”
Bill Bennett: “It is a mistake to believe that the courts have the ultimate say as to what a constitution means. (…) It is time, therefore, for Governor Bush to execute the law and protect her rights, and, in turn, he should take responsibility for his actions. Using the state police powers, Governor Bush can order the feeding tube reinserted. His defense will be that he and a majority of the Florida legislature believe the Florida Constitution requires nothing less.”
Ann Coulter: “As a practical matter, courts will generally have the last word in interpreting the law because courts decide cases. But that’s a pragmatic point. There is nothing in the law, the Constitution or the concept of “federalism” that mandates giving courts the last word. Other public officials, including governors and presidents, are sworn to uphold the law, too. (…) Just once, we need an elected official to stand up to a clearly incorrect ruling by a court. Any incorrect ruling will do, but my vote is for a state court that has ordered a disabled woman to be starved to death at the request of her adulterous husband.”
Alan Keyes: “When time is of the essence, necessity authorizes the executive to safeguard the security of the constitution before citizens and the polity suffer irreversible damage. Terri Schiavo’s survival depends on Gov. Bush’s faithful execution of this responsibility, and the survival of American self-government on the willingness of all those in a like position to faithfully execute the duties of their high office.”
Elizabeth Farah: “Gov. Bush, you have the right to exercise your authority to save this woman’s life. You have the authority to reject a corrupt judge’s corrupt decision. Remember when the pharoah issued the order that all Hebrew male infants should be killed? What did Moses’ mother do? She broke the law of the civil authority. She saved the life of her son. (…) Jesus says that yes, you will have many detractors – people who will revile you for doing the right thing, but you will be rewarded greatly by God.”
I could go on, but it’s too depressing.
Obviously, I am not a conservative, nor do I normally try to tell conservatives what I think they should do. But the vilification of judges, and incitements to disobey the law, are serious business. If I were a conservative, and had some credibility in conservative circles, I would think hard about the legal facts of the case, figure out what legal mistakes, if any, the judges actually made, and then try to convince my fellow conservatives not to blame the judges for the rest. If you think that in cases like this, we should require written evidence, or proof beyond a reasonable doubt, your problem is with the Florida legislature. If you think that artificial feeding and hydration should not be considered ‘medical treatment’, or that an estranged husband should not have the right to make decisions for his wife, ditto. In none of these cases did judges just “invent” the law; the legislators did. The judges did more or less exactly what we want them to: they applied the laws as written.
The rule of law matters. And maintaining the rule of law requires that we criticize judges, and urge people to defy them, only when they have actually done something wrong. If any of you agree, I think it’s important to say so.
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On to the law. The best source of information and quite balanced commentary is Abstract Appeal. Here are some of the crucial legal issues in this case, together with some relevant statutes and cases:
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