The Constitutional Merits of the Schiavo Case: It looks like Congress has taken what I think is the unprecedented and rather bizarre step of expanding the jurisdiction of the federal courts to allow a particular District Court to take jurisdiction over a single case, that of Terri Schiavo. Missing from the press coverage I have read is any sense of the merits of the federal case enabled by the new law. As I understand it, a federal court will now review the merits of the state court decision ordering the withdrawal of the feeding tube to see if the withdrawal satisfies federal statutory and constitutional law. Does any one have a sense of what the federal court is likely to do? Are there obvious constitutional problems with the state court order, and if so, under what theories and supported by what precedents?

  I have opened comments. Please keep it civil and focused on the merits of the constitutional and statutory arguments likely to be raised in federal court. Anything else will be deleted.

  UPDATE: Stephen Henderson has a good story on some of the legal issues raised by the Schiavo law here.

The Shiavo Complaint filed today in federal court has been posted here. The gist of the complaint seems to be an argument that the federal constitution required the appointment of a person to represent Terri's rights directly, and that the state procedures violated the Constitution by allowing the state trial judge to act as a "health-care surrogate." I'm no expert in this area, but at first blush this doesn't sound very persuasive to me.

Decision in Schiavo Case: The federal district court in the Schiavo case has denied the motion for a temporary restraining order. Thanks to How Appealing for posting the opinion. It seems likely that the Eleventh Circuit will affirm, and the Supreme Court will deny certiorari, taking us back to where we started before Congress became involved.

Eleventh Circuit Affirms in Schiavo Case: The 2-1 opinion is here, via How Appealing. The majority opinion ends with a bit of a lesson to the American public (and Congress) about the rule of law:

  There is no denying the absolute tragedy that has befallen Mrs. Schiavo. We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law. In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws, and if we are to continue to be so, the pre-existing and well-established federal law governing injunctions as well as Pub. L. No. 109-3 must be applied to her case. While the position of our dissenting colleague has emotional appeal, we as judges must decide this case on the law.

  Judge Wilson dissented, essentially on equitable grounds: Schiavo will die absent immediate relief, he reasoned, and Congress seems to have wanted the federal courts to keep her alive until there was a more substantial hearing. Notably, however, Judge Wilson avoided explaining why the case presented the required substantial likelihood of success on the merits. On this point, he offered the conclusory view that "[t]he merits of Plaintiffs' substantial claims warrant a more complete review. I do not mean to suggest that Plaintiffs will definitely prevail on the merits, but merely that she has presented a sufficient case on the merits."

  The case will now go up to the Supreme Court, I assume. The chance that the Supreme Court will agree to hear the case or otherwise intervene is very close to zero.

Congressional Intent and the Schiavo Case: Hugh Hewitt comments on the Eleventh Circuit decision declining to order the feeding tube restored in the Terri Schiavo case pending trial:

Judicial contempt for the coordinate branches on this scale is simply staggering. Anyone defending this morning's majority or yesterday's ruling has to defend this disregard of Congressional action.

Hewitt sees the ruling as a "disregard of Congressional action" because of statements made by proponents of the bill such as this statement by Tom DeLay:

"We are confident this compromise will restore nutrition and hydration to Mrs. Schiavo as long as that appeal endures," DeLay said. "Obviously, the judge will have to put the feeding tube back in or she could die before the case is heard."

Hewitt offered a similar take on yesterday's district court decision:

[The] court simply ignores the obvious intent of an overwhelming majority of the Congress and the agreement of the president. Once again we have on display a judiciary that has grown contemptuous of the directly elected branches. When the Senate returns, the clash over judges will commence again, and proponents of nominees who understand that it is the role of judges to apply the law as intended by Congress will have another powerful example of why such nominees are so needed on the bench.

I recognize that the Schiavo case is an emotional topic, but I'm not sure I follow the basis of Hewitt's criticism. The foundational premise of statutory interpretation is that the role of the judiciary is to obey the text of Congressional enactments, not to watch press conferences and get a sense of what the proponents of legislation actually want. The judiciary shows contempt of the directly elected branches by ignoring the text of the laws they pass, not by following that text. What am I missing?

  I have enabled comments. As always, civil, respectful, and on-topic comments only.

Hugh Hewitt Responds on Schiavo and the Judiciary: Hugh Hewitt has responded to my questions about his reaction to the Schiavo court decisions. He writes:

  [A]nyone trying to argue that Congress did not make its intent clear . . . are asking their readers to disbelieve what nearly every commentator has either praised or condemned over the past few days — that Congress intervened on behalf of Terri Schiavo with the intent of restoring her care during the interim period when a federal judge could review her situation de novo. Straining to see other than judicial contempt for that effort is just not persuasive. . . . [H]ere there is only judicial contempt for the coordinate branches blended with cowardice that compels absurd arguments about what Congress did and did not intend.
  Orin should answer the question: Did Congress intend Terri Schiavo to die before a de novo inquiry into the circumstances surrounding her condition was complete?

  I'm afraid Hewitt misses the point. The key question is not what Congress intended, but what Congress actually did. Judges are not tasked with following the reasons why "nearly every commentator" has "praised" or "condemned" legislative proposals. As I see it, their job when interpreting statutes is to read the law that Congress enacted and to do what that law and existing precedent tell them to do. As Justice Holmes explained, "We do not inquire what the legislature meant; we ask only what the statute means." Oliver Wendell Holmes, Collected Legal Papers 207 (1920).

  Of course, there are different views on the role of text and legislative intent in statutory interpretation. Some people think that courts should follow the text and the text alone; others think that the courts should follow text as informed by legislative history; still others think that the courts should follow text as infomed by context or the apparent purpose of the legislative action. This is an interesting and complex debate, and not one we can resolve here. I think it's fair to say, however, that the mainstream of legal debate today presumes that a judge's job is to follow the language of the law the legislature actually enacted as at least the primary guide to interpreting statutes, rather than the statements of individual legislators or commentators. The reason for the importance of text is simple democracy: the Constitution sets out very specific rules for enacting laws, and the job of the courts is to interpret laws validly enacted pursuant to that constitutional scheme. Following the text ensures that the courts obey the laws that Congress actually enacts, rather than the laws that some legislator or commentator hoped to enact but lacked the political support to enact.

  The problem with having courts follow the statements of individual lawmakers and commentators is that their views are not subject to the constitutional lawmaking processes. Being outside of the lawmaking processes, these individualized expressions of intent cannot provide a sound standard for interpreting statutory commands. Legislation is usually the product of compromise, and different legislators and commentators have different goals, hopes, and aspirations. Following the expressed views of any one individual or faction would allow that person or group to bypass the Constitutional lawmaking process and get their version of what they hope or wish the law did enacted into law without being subject to the Constitution's requirements. The Supreme Court expressly counseled against this in Circuit City Stores v. Adams, 532 U.S. 105, 120 (2001):

We ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal--even assuming the precise intent of the group can be determined, a point doubtful both as a general rule and in the instant case. It is for the Congress, not the courts, to consult political forces and then decide how best to resolve conflicts in the course of writing the objective embodiments of law we know as statutes.

  A sensible approach, I think.

  Hewitt ends his post by giving me an assignment: "Orin should answer the question: Did Congress intend Terri Schiavo to die before a de novo inquiry into the circumstances surrounding her condition was complete?" The truth is, I have no idea. I don't know who Congress is, or who to ask to find out what this Congress person thinks. I don't know what kind of deals were struck and compromises reached behind closed doors that led to the legislation that passed. I have no idea whether the legislators who expressed views on the record as to what they expected the legislation to do were a) accurately reflecting the sense of most legislators; b) merely expressing the intent of a number of legislators; c) only articulating the hope of a few; or d) simply trying to please particular interest groups by stating the law they supported would achieve a particular result even though they knew the law would do no such thing. My point is that it doesn't matter which of these is true. The law is the statute that Congress passed, not the expressed intent of particular legislators or articulated understandings of particular commentators.

  Finally, given that Hewitt ended his post with a challenge for me, permit me to end with a challenge for him: Hugh should say whether he thinks that the plaintiffs in the Schiavo case have a winning case on the merits, and if so, on what specific constitutional or statutory grounds.