Federalism and an imperial judiciary

In the latest round of events surrounding the prolonged case of Terri Schiavo, conservatives–not having gotten their way in court–are increasingly accusing judges of, as Terri Schiavo’s father put it, “running the country.” A Los Angeles Times story, noting that “Republicans have also taken the lead in recent years in championing the rights of states to resolve a wide variety of legal disputes without being second-guessed by the federal government,” recalls the Republican Party platform in 2004:

    “The sound principle of judicial review has turned into an intolerable presumption of judicial supremacy,” the [Republican Party platform] statement reads, decrying the effect of “scores of judges with activist backgrounds in the hard-left.”

But in a commentary published in the Los Angeles Times, Andrew Cohen, a CBS News Legal Analyst, argues that the Schindlers, Terri’s parents, had run out of good legal arguments. Resorting to bad arguments, the Schindlers, and the Bushes (both President George and Florida Governor Jeb), and Congress expected federal courts to supplant state courts.

    If accepted, it would have meant the end of state courts as we know them. No decision at the state level ever would be final, because every losing litigant at the state court level would be able to walk into federal court and declare a federal constitutional violation. State court trials thus would become like practice sessions and the federal courts, which are supposed to be of “limited jurisdiction,” resolving only certain kinds of disputes, would become free-for-alls.

In the end, the courts refused to accept the Schindlers’ claim that their daughter had been denied her constitutional rights.

    “The courts have consistently found that she did not want to be kept alive artificially,” said George Felos, the lawyer for Ms. Schiavo’s husband, Michael, who successfully petitioned to disconnect the feeding tube that had sustained his severely brain-damaged wife. “In that spirit, I hope the parents do not continue pursuing fruitless legal options until the end. I think their time would be better spent in reflection.”

The Schindlers and their allies are, in essence, claiming that their concept of justice should supplant the rule of law. This demands my attention, for in the past, I’ve argued that there is more to justice than law. Yet in this instance, it is law that finally calls an end to this saga. Justice, to the extent it is possible in such a tragic case, has long ago been served, and it is only law that has so prolonged it.

Ironically, it’s been Conservatives who have so long complained about “judicial activism.”

    “Congress’ desire to get a particular outcome led it to invite the courts to be activist, and the judges have properly refused,” said Douglas Kmiec, a professor of constitutional law at Pepperdine University School of Law, and a former Justice Department official in the Reagan and first Bush administrations.

Others remark on an apparent bias in seeking to preserve life:

    “I could not imagine [House Majority Leader] Tom DeLay interrupting an Easter recess to come back for special legislation because there was a possibility that someone on death row was innocent,” said Louis Michael Seidman, a professor at Georgetown Law School in Washington.

So conservatives have gone against the majority in public opinion, undermined the consistency of their own complains about judicial activism, and thus threatened to intrude on the lives of countless Americans in similar situations, making painful decisions about the lives of their loved ones, all to curry the favor of the Christian right.

Will it be worth it?

Author: benfell

David Benfell holds a Ph.D. in Human Science from Saybrook University. He earned a M.A. in Speech Communication from CSU East Bay in 2009 and has studied at California Institute of Integral Studies. He is an anarchist, a vegetarian ecofeminist, a naturist, and a Taoist.

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