The Danger of the "Rogue Judiciary" Concept

| | Comments (6) | TrackBacks (1)

To start with, and to make emphatically clear, I do not condone, excuse, or offer any quarter to the judges who have made the decisions that have thus far condemned Ms. Schiavo. As Dickens says at the beginning of A Christmas Carol, "You must understand this for without it there would be no story."

However, there is a serious danger in lilmiting the blame to the individual judges. That they are morally culpable for their decisions cannot be doubted. Nevertheless, the fact that several judges now have arrived at the same conclusions leads us to a more frightening possibility. If these judges are judging fairly, on the merits, and by the rule-of-law (I don't stand capable of judging these issues), then the law by which they are guided to their decisions is seriously, indeed dangerously flawed. In this sense the actions of the Florida legislature are required immediately to remedy the flaw in the law.

I suspect part of this flaw may have to do with the medical and legal definition of life-support. As countless people have already pointed out, being forced to breathe and pump blood under the aegis of a machine constitutes extraordinary measures. Providing food, while technically life support, is hardly extraordinary. What may be happening in the law is a failure to distinguish between these two methods.

Ms. Schiavo's plight is a wake-up call for all of us. Some take it to mean that we must be explicit in our durable power-of-attorneys or living wills. I take it to mean that we must begin to redefine and truly understand what extraordinary measures are. There may be circumstances under which withholding food MIGHT be moral--I am not enough of an ethicist to understand every possibility. But when we are speaking of a living, functioning human being who happens to be operating at less than their former capacity, there is absolutely no question of the immorality of removing ordinary means of maintaining life.

The courts do not care about morality. They care, rightfully, about the law. That three sets of courts can find no merit in the arguments surrounding Ms. Schiavo must be our tip-off that something is seriously amiss in the legal system. Believe me, I am no friend of the judiciary--however, I think the focus must be on changing flawed laws to assure that future decisions are made in favor of sustaining life whenever there is any doubt as to the person's wishes. We cannot err by sustaining life and allowing God to make the decision as to when and where and how a person will join Him; however, when we take it upon ourselves to pretend to know this, we are in moral jeopardy, and for those who know better, in possible jeopardy of soul. A judge who knows the morality or immorality of the law is not likely to be able to hide behind the excuse of "I was just following orders" when called to account for his or her actions.

As concerned citizens, we must heed this wakeup call as we continue to pray for Ms. Schiavo. We must work quickly and in concert to move our legislatures toward laws that make sense and are compassionate and pro-life. The danger of focusing solely on the individual decisions is that we may not eradicate the root of the problem--bad law and bad legal definitions and understandings. The judges may be in the wrong morally, but the calamity is they may be in the right legally. If so, we must work as each is able to assure that such a thing as this never happens to another family.

Mr. Appleby, who neither endorsed nor approved the message above, does ask that we make everyone aware of his message with which I am in complete agreement. The immediate necessity is to pray, call and work to save Ms. Schiavo--but in the longer term, we must band together to prevent a recurrence of this nightmarish evil.

Bookmark and Share

1 TrackBacks

Listed below are links to blogs that reference this entry: The Danger of the "Rogue Judiciary" Concept.

TrackBack URL for this entry:

Mr. Riddle typically has an important observation on the Terri Schiavo situation. I’ve not commented because I don’t know the facts, so my opinion is just that, nothing more. Others who are more involved know a lot more than I Read More



Maybe some of this can help. Again, certainly not excusing their actions, but it might help to understand the judges.

I would have to say that they are acting according to a reasonable interpretation of the law. I have not seen all of the brief's that Terri's lawyers have filed, but I've heard some very respected senior lawyers say that they failed to make some available arguments. Like deprivation of substantive due process (versus procedural due process) and claims under the American Disabilities Act.

The standard for determining whether to issue a stay is one of whether there is a substantial likelihood that the party requesting the stay would succeed on the merits and that there would be irreparable harm if the stay was not issued. I think this judge wrongly emphasized the first part over the last part, but it is part of the standard.

Second, federal courts, when reviewing state court decisions, look to whether there is a federal question. Now the bill ensured federal jurisdiction here. The problem is that the bill wasn't as described. It didn't mandate that the federal court review the case anew (but would have allowed for that). Accordingly, the judge took the most limited approach and reviewed the state court decision on the federal questions, giving typical judicial deferrence to the trier of fact's decision.

As it turns out, the bill didn't really help that much. Congress could have changed the standard for issuing a TRO or mandated that the court review the entire case again. Instead, it left it to the court's discretion. Given that, it unfortunately isn't shocking that the judge didn't stick out his neck for Terri.

To follow up:

Once this was decided, the question went up to the appelate court, which applied the traditional standard of review to the district court's decision. I can't remember the exact phrasing of that standard right now -- it's been a while since my law school days and I am not a litigator -- but, given the facts, it pretty much came out the way you would expect.

I think the frustrating thing is that you could make a case for a very different result. (As the dissenting judge did.) But the truth is the judges have a pretty good shield in terms of the "standard of review". It is incredibly unlikely that Justice Kennedy will send this matter to the Supreme Court for cert review, and even more unlikely that they would grant it. They could still try to get a rehearing at the appelate level or an en banc hearing, but I'm afraid the result is unlikely to change.

Who knows if this was a congressional oversight or the problem of haste or that they didn't have the votes for anything more comprehensive, but the bill could have been drafted more strongly.

Admittedly, all of this is written with a very cursory review of the bill, reliance on other's review of the court filings, and my strained memories of federal jurisprudence class back at HLS. So take it for what it is worth.

Don't mean to flood your comments box, Steven. But I just got a copy of the Appelate court decisions and the argument made by Terri's lawyers was more nuanced than I thought as they also made a claim for relief under the All Writs Act in addition to the customary TRO. Different standard for issuance of the All Writs Act.

Doesn't change the conclusions of some of most of my comments above. But wanted to acknowledge the nuance.

Dear Jack,

Thank you. That substantively explains much of the goings on in all the courts; but the main issue remains--there is something wrong with the law that is being interpreted that allows this to happen. And we need to fix that first an foremost.

However, the insight into what is happening is helpful and much appreciated. Thank you for taking the time to explain.

And also, many thanks for stopping by.



Agreed, wholeheartedly. It is clear in my mind that a new standard needs to be used that lessens the emphasis on proving the merits of one's case as being determinitive in the issuance of temporary stays in circumstances like this, given the imminent risk of death. A preference for life needs to fundamentally be put into the standard, given that some judges refuse to use their general equitable powers to do that. (Can't rely as heavily on there being properly formed consciences as we once might have.)

Today's Boston Globe had an article about a Labrador dog that bothered the neighbors because of its deep-throated barking. Annoyed neighbors got an order from the local authorities that the dog's vocal chords had to be removed. But dog lovers' united and because of their opposition, the order was rescinded and the dog is barking happily away.

Now if only Terri were a dog, she'd be getting some food and water right now...



About this Entry

This page contains a single entry by Steven Riddle published on March 23, 2005 11:14 AM.

Hannah Arendt and "the Banality of Evil" was the previous entry in this blog.

The Rootlessness of Evil is the next entry in this blog.

Find recent content on the main index or look in the archives to find all content.

My Blogroll