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.
Dales (mail) (www):
Well, I would rather Terri be allowed to live, but having read the appeals filed in the last few days, I think the courts have ruled appropriately.

One thing I find interesting that I blogged about just a few minutes ago is that one of the 11th Circuit judges who ruled in the majority is Edward Carnes, who was originally held up from confirmation due to significant opposition from liberal groups concerned over his strict constructionism and concern over his record on civil rights-- the same sort of objections being used to hold up the confirmation of judges such as Pickering right now.
3.23.2005 1:05pm
Cathy Young (mail):
The disregard for the separation of powers by the "pro-life" conservatives in this case has been staggering. The other day Rick Santorum was fuming because the judge who got the case didn't rule as they wanted him to. And Bill Bennett was on FOX saying that the judges should have ruled to reinsert Schiavo's feeding tube out of "comity" (I think that's the word he used) for the other two branches, since the legislators and the President obviously gave such high priority to the case.

Of course, maybe he meant to say "comedy." A very black one, considering the horrific human tragedy of this case.
3.23.2005 1:09pm
Anderson (mail) (www):
I was already wondering, in reading the 11th Circuit's op, what Scalia would think of their use of legislative history.

Hewitt certainly seems to think that the "intent" of legislation, not its actual text, should control. And three judges (the trial judge &the panel majority) are now contemptuous of Congress, for reading the text not the "intent." Or, I guess, for reading the evidence of "intent" differently than Hewitt does.

I think Hewitt inadvertently shows what's wrong with at least one variety of originalism; how is it any easier to divine what's in the heads of the Constitutional Convention than what's in the heads of a Congress that passed a statute last weekend?
3.23.2005 1:10pm
carpundit (www):
Perhaps Mr. Hewitt did not read the 11th Circuit decision, which quite clearly addressed the issue of Congressional intent. That court even reproduced the transcript of an on-the-floor exchange with Senate Majority Leader Frist. The Senate, at least, knew exactly what the law would require federal courts to do: review the case under extant procedural rules. That Mr. Frist, Mr. DeLay, and Mr. Hewitt wanted (even expected) a different outcome is no reason to condemn the judicial branch that followed the laws written for it.

Following the written law is what conservatives used to espouse. Now they 're looking for certain outcomes. That used to be called judicial activism, and conservatives used to oppose it. These Culture Wars are hard to follow.
3.23.2005 1:13pm
Timothy Sandefur (mail) (www):
In fact, the court did consider Congressional intent, on p. 5 et seq. It found that Congress chose to eliminate language that would have expressed a Congressional intent that the court issue an injunction. What Prof. Hewitt's argument suggests is that courts should infer a more generalized intent from "what everybody knows" rather than from the actual, decided-upon language of the statute. But as the California Supreme Court once put it, "if the Judges were to adopt the notion that a law might be declared unconstitutional, because of its supposed repugnancy to the spirit of the Constitution, they ought to employ a rapping medium to procure authentic revelations from that spirit." Pattison v. Board of Sup'rs of Yuba County, 13 Cal. 175, 182 (1859). The "intent" is to be ascertained from the language the legislature saw fit to pass, and perhaps from language the legislature explicitly rejected. In this case, the majority decision employed these tools correctly.
3.23.2005 1:14pm
RichardH (mail):
Whatever happened to the distinguishment between morality and legality?
3.23.2005 1:18pm
Anderson (mail) (www):
Great quote, Mr. Sandefur; I'll have to use that in a brief one day.
3.23.2005 1:27pm
Hewitt is mistaken that the judiciary is behaving contemptuously. On the contrary, the district court and 11th Cir panel have both bent over backwards to apply a statute rife with constitutional infirmities.

Perhaps Hewitt is confusing the courts' conduct (as expressed through their thorough, cogent opinions) with the contempt which Congress in fact deserves.
3.23.2005 1:30pm
Some Jarhead:
There are two crowds:

1) People who say Congress has "disregarded the seperation of powers," or other such nonsense. Congress has the exclusive power, as found in Article III, to set the jurisdiction of the federal trial courts (or create new courts, or close old one, yadda, yadda). This is plain-as-the-nose-on-your-face obvious.

2) People who say the Judiciary has "disregarded the proper authority of Congress," or other such nonsense. There isn't much wiggle room for judicial action in this case - it's a state decision using state finding the patient's wishes were to refuse this treatment. It's a sad decision, but that decision (Terri's decision) is final. This, as well, is obvious.

Then there's the rest of us, who realize that this is about national politics - specifically Congressional leadership firing a(nother) shot across the judicial bow. Remember the national climate: an ailing Court, a confirmation war, a string of highly-controversial activist decisions, etc..

Quite frankly, it's about time somebody give the Judiciary something to worry about.

And hey, if you're one of the left-wingers who figures that this is a good opportunity to point your fingers at Conservatives and call us "big brother," or "anarchists," or "tyrants," I have a question for you: Aren't you tired of losing elections? Because nobody listens to your shrieking anymore...
3.23.2005 1:37pm
jpe (mail) (www):
Perhaps Mr. Hewitt did not read the 11th Circuit decision, which quite clearly addressed the issue of Congressional intent.

I thought the same thing, so I went back anc checked his blog, and he hadn't read the decision.

Nonetheless, that doesn't explain the privileging of intent over the clear meaning of the text (re: intent: given the circumstances and the speed with which the statute was drafted and passed, delineating a single, univocal intent is really problematic).
3.23.2005 1:41pm
What have you missed? That "judicial activism" has become a demagogic code word for "a decision I don't like."
3.23.2005 1:41pm
Jared (mail):
It has been interesting watching the television coverage and general punditry regarding the Schaivo case, because you can immediately tell who is being reasonable and balanced vs who is trying to mislead and play to emotions. Hewitt seems to be an intelligent guy, so I must conclude that he is choosing to mislead his audience.

The federal courts are now forced to take a de novo look at this according to the new law, this fact is true. But thats not the issue before the court right now. Currently, the court has to decide whether a preliminary injunction should issue reinserting the feeding tube. There is obviously not enough time to hold a new federal trial to determine Shavio's wishes before she expires, as has been ordered and enacted into law. So in order to determine whether the injunction is to issue, the court has to determine if there is a substantial likelihood that they will succeed later on the merits. The court HAS NOT said they are refusing to look at the case de novo....they will, in due time. They just won't issue a preliminary injunction to put the tube back in because there is very little chance that Terri will win.

The burden of proof is on the family to show this "substantial liklihood of success." After spending so much time in litigation and forcing the state trial court, the 2nd DCA, and the Florida Supreme Court to look at this case again, and again, and again, the courts have ALWAYS ruled that Terri would want to have the tube removed. The Supreme Court has denied cert. multiple times.

Here's the bottom line--anyone who believes that there is a substantial liklihood that the family will prevail on the merits is fooling themselves. Whatever you think of the underlying moral issues, the court ruled correctly, and Congressional action was not disregarded. Next time, the Congress should perhaps make themselves more clear writing the law, instead of debating amongst themselves at 1 in the morning.
3.23.2005 1:42pm
Joel B (mail):
Isn't part of the issue itself that Congress directly authorized a stay to be issued under the bill upon filing of the suit. That seems pretty clear that the requirements for a preliminary injunction then don't apply, at least as the bill is applied.

"Upon the filing of a suit or claim under this Act, the District Court may issue a stay of any State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo pending the determination of the suit."

Thus to consider it under the preliminary injunction rubric actually is misreading the law, the bill is an express grant of authority to grant the stay, not to consider to grant a prelimary injunction under the normal sense.
3.23.2005 1:48pm
Sean Sirrine (mail) (www):
Andrew C. McCarthy argues that Judge Whittemore ducked the true cause of all the legislative maneuvering in the same vein as Hugh Hewitt. However, they should be more cognizant of the fact that the fault lies with the plaintiff and Congress.

There might be some room to argue that Congress gave the federal courts de novo review of the facts pertaining to this case, but the plaintiffs failed to contest the issues that McCarthy and Hewitt address. If the plaintiffs had presented their original claims, I believe the federal court would have ruled on the merits. The parents could have forced the court to examine the Constitutionality of the case being brought to the federal courts and at least bought some time.

What you're missing is that there is a vast disconnect between Congress and those promoting reinsertion of the feeding tube. Congress gave them an opportunity that was "safe" for them in that they new it wouldn't hold up. The plaintiffs then made a "safe" claim to the federal courts in anticipation of the weakness of the Congressional action. This lead to situation in which the federal courts were relieved from reviewing the entirety of the case. Those politically attached to the pro-life stance are willing to blame the judiciary for the weakness of their own counterparts.
3.23.2005 1:48pm
Daniel San (mail):
The legislation is complicated by the provision for 'de novo' review. Without recourse to the legislative history, it is impossible to determine the meaning of this provision. An ordinary contruction would render it almost meaningless.
3.23.2005 1:50pm
plunge (mail):
"1) People who say Congress has "disregarded the seperation of powers," or other such nonsense. Congress has the exclusive power, as found in Article III, to set the jurisdiction of the federal trial courts (or create new courts, or close old one, yadda, yadda). This is plain-as-the-nose-on-your-face obvious."

But setting jurisdiction is one thing. The bill in question, and this is apparently the source of Delay's and Santorum's complaints, says that the judge must review the issue "de novo" which to us might mean one thing, but to Delay seems to mean "hold a completely new trial in federal court, starting from the beginning" Does Congress really have the authority to do that? Delay also claims that the bill REQUIRES the judge to issue a stay on the order to remove the tube: isn't THAT also a pretty significant claim to a power that Congress doesn't have: telling a court how it should rule on a specific case when it has established no particular general law that would lead to that ruling?
3.23.2005 1:53pm
Keith Burgess-Jackson (mail) (www):
What Hewitt sees as judicial imperialism some of us conservatives see as judicial independence. See here.
3.23.2005 1:54pm
ech (mail):
How is this law not a constitutionally prohibited bill of attainder aimed at Mr. Schiavo?
3.23.2005 1:59pm
Joel B, the district court already had authority to issue preliminary injunctive relief to the extent authorized under Rule 65. The portion of the Schiavo bill you've quoted -- which, I note, says "may," not "shall" -- is thus essentially surplusage.

The directive to conduct review de novo, while legally dubious, is limited to federal constitutional claims, and not to the numerous state law issues previously adjudicated. That's why the parents' TRO request set forth so narrow (and inherently meritless) a set of constitutional claims.
3.23.2005 2:01pm
Alceste (mail) (www):
I think the very limited nature of the TRO request noted by Apodaca above is key. I believe the statute as written would have permitted the petitioners to have raised the substantive merits of the underlying decisions in the federal complaint (and I think it is here where the federal statute would eventually have been ruled unconstitutional). Given petitioners' failure to raise these claims and focus on the procedural claims, the court ruled (correctly, I think) on the issues actually before it instead of actively reaching out to fulfill Congress' supposed intent. For those dissatisfied with the ruling, criticism of the court is misplaced - it should be focused at petitioners' attorneys.
3.23.2005 2:14pm
Joel B (mail):

That's my point, that generally courts don't read language in law as mere surplusage, that section is not restating Rule 65, instead it's a different kind of relief, allowing a stay irrespective of other concerns (except for perhaps constitutional ones). The requirements for obtaining a preliminary injunction, I don't think at least, are usually thought as constitutionally required.

The de novo point is also a good one. Even under Rule 65 the question of Would a person be considered to have been denied due process if they were starved to death without any proceeding in a court, by a court? seems to be a substantial case on the merits as well. Remember, that the case is to be considered irrespective of any proceedings in the state court. So start from zero and ask the question. That seems to change a lot of the dynamics, the judges on the other hand seem to be saying...given all that we know and transpired, is there a substantial case on the merits? Which Congress was trying to prevent.
3.23.2005 2:19pm
praktike (mail):
People like Hugh Hewitt are why we have an independent judiciary, legal processes, and so forth.
3.23.2005 2:20pm
Joel B (mail):
FWIW, I mostly agree will Alceste's point.
3.23.2005 2:25pm
Sydney Carton (mail):
It's a complete fallacy that in this age judges act according to the law. Everyone knows that Judes, from the Supreme Court on down, do what they want because they perceive themselves to be our Robed Masters. In fact, most judges take this direction from the Supreme Court, which casually disregards the will of the people and Congress as if democracy was nothing more than a strange affliction that must be rid of.

With that in mind, it's obvious that the Judges in this case are going to do everything in their power to murder Terri Schiavo. The principle at work is this: they will not question, in a de novo review or a preliminary review or anywhere else, the actions of Judge Greer. Why not? Because to upset his ruling, and the subsequent appeals and everything else, would expose his rulings as mistakes. And as Judges know, Judges do not commit mistakes. They are our Robed Masters, after all. They're elite.

The best indication that you're losing an issue is if you're arguing before a judge. If you're at that point, you've already lost. The entire judiciary is in league with Evil.
3.23.2005 2:25pm
Anderson (mail) (www):
People like Hewitt are why we have *and need* an independent judiciary, etc.
3.23.2005 2:25pm
CharleyCarp (mail):
People who only care about outcomes often think that that's all anyone else cares about either. For such people -- of whatever ideological stripe -- appeals to the 'rule of law' are either (a) incomprehensible; (b) thought to be bad faith; or (c) both.
3.23.2005 2:27pm
dafydd (mail):
After reading the majority opinion and skimming the minority opinion, I wondered if the Senate pulled a fast one...

They did not change the procedural rules to ensure Mrs. Schiavo had her feeding tube reinserted. And, they included the expression "status quo" (I infer from majority opinion) in a law that was passed ~after~ the feeding tube had already been removed, thus allowing the expression to be interpreted as allowing the feeding tube to remain removed.

I wonder if the Senate, if not the whole Congress, wanted to be seen as Doing Something, while still allowing the case to come to the conclusion that was reasonably obvious under existing law?
3.23.2005 2:35pm
Eric Rasmusen (mail) (www):

Joel B. put it well in his comment:

Even under Rule 65 the question of Would a person be considered to have been denied due process if they were starved to death without any proceeding in a court, by a court? seems to be a substantial case on the merits as well. Remember, that the case is to be considered irrespective of any proceedings in the state court. So start from zero
and ask the question.

As I put it in my blog at

An Indiana judge might declare that I, Eric Rasmusen, am hopelessly vegetative (since I'm conservative) and there is clear and convincing evidence that I would have wanted to die (since I'm smart, and any smart person would want to die if he were hopelessly vegetative). He could order the door of my office nailed up, so no food and drink would reach me, and forbid anyone to go in or out for three weeks. On appeal, the Indiana courts could say that they see no reason to overrule the trial judge.

Could Congress pass a law authorizing review of the Indiana judge's finding of fact, or a new finding de novo, by a federal judge?

If Congress can do that, then the federal judge *must* issue a TRO, according to ordinary principles of when TRO's are appropriate, if he thinks I have a substantial chance of winning.

The problem in the Schiavo case seems to be that the plaintiffs only claimed the Florida courts erred procedurally and did not argue for a de novo review of the facts.
3.23.2005 2:35pm
CharleyCarp (mail):
There seems to be a lot of confusion around about what exactly the claims were that Congress said could be examined de novo. The special jurisdictional grant was based only on constitutional claims, and those arising from federal statutes. (Other claims would be outside Article III). The trouble is, there's no non-frivolous constitutional claim to assert here. Even the 11th Circuit dissenter couldn't think of a coherent sentence to write describing such a claim.

People are free, of course, to grouse all they want. But unless they can state a non-frivolous federal claim -- and the new statute did not provide any substantive relief -- it's just noise.

(BTW, it's not like this shouldn't have been anticipated. Last week, in denying a request for injunctive relief based on the 5th, 6th, 8th, and 14th amendments, the district court concluded that there was no likelihood of success. Schiavo v. Greer.)
3.23.2005 2:39pm
The majority opinion in the 11th Circuit was VERY clear on the legislative history. To recap:

1) The original bill said that the court "must" issue a TRO;
2) The bill was then amended to say the court "may" issue a TRO;
3) The relevant paragraph was then removed entirely;
4) In the course of debate on the final bill, Sen. Levin asked it to be clarified on the record that, by deleting the paragraph containing the word "may," Congress was not evidencing an intent that the TRO be mandatory;
5) Sen. Frist agreed with this, stating that the court was free to issue a TRO, and that he assumed it would do so under the circumstances, but that the bill did not require it; and
6) Sen. Levin made it clear on the record that he was agreeing to pass the bill on unanimous consent, and not to require a full roll call of the Senate, based upon this representation by Sen. Frist.

I think that is as much of a slam dunk as you ever get from the legislative history of a bill.

What is truly remarkable is that the dissent did not ignore the legislative history; rather, it considered the exact same history and concluded that notwithstanding the above, Congress still intended for a TRO to issue. I confess that I am completely unable to follow its reasoning in this regard. Maybe the issue comes down to the meaning of "intent" as opposed to "expectation" or "hope."
3.23.2005 2:47pm
CharleyCarp (mail):
That said, I might have included all the state law claims I could think of, and try to argue supplemental jurisdiction. In fact, I think it might be permissible to move for a TRO based on the state claims, even though they are supported by supplemental jurisdiction, and leave the federal claims for resolution under Rule 12. I'm not sure what the judge would have done with this, but it would have put him in a very different position than simply dealing with the frivolous constitutional claims.

I guess that Gibbs didn't plead it this way because he thought, erroneously, that the weak mandate he got from Congress would be enough.
3.23.2005 2:50pm
Sean Sirrine (mail) (www):
Whittemore discusses the standing of the plaintiff in this case. He explains that he feels that he must acknowledge a responsibility to review this case de novo. It is the fact that the plaintiff is looking for injunctive relief that makes the question of Constitutionality moot as found in Benning v. Georgia (11th Cir. 2004) Unfortunately, the plaintiff missed a great opportunity right here to have a federal judge re-hear the entire case. It was a mistake not to put forward the entire set of claims, since the court was given full authority to do so by University of S. Ala. V. American Tobacco Co. (11th Cir. 1999). They simply would have had to allege the same claims of their initial case:

United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violations 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 life.

For more on this go here.
3.23.2005 2:57pm
adam (mail) (www):
Congress could have avoided this by including within the statute a clear standard as to when a TRO should issue -- "in this matter, injunctive relief shall be issued upon a showing that plaintiffs have any likelihood of success on the merits," etc. Even in abrogating the abstention doctrine, Rooker-Feldman and standing doctrines, they failed to do the one that may have helped the most.
3.23.2005 4:17pm
Charley, I am sure the Schindlers asserted all the state law claims they could think of in the course of the state court litigation. The recent law only gave the Middle District authority to hear federal and constitutional claims. At this point, the state claims would merit at best footnote stating they are res judicata and at worst sanctions as frivolous.
3.23.2005 4:39pm
David M. Nieporent (www):

That provision might have gotten the TRO issued, but to what end? The key word in TRO is "T." So the tube is inserted, and then they hear the case and immediately rule against the parents anyway. Yeah, it buys her a little more time, to be sure -- but unless there's some likelihood of her waking up or him suddenly confessing he made the whole thing up, where do they go from there?

Besides, it's not clear that even with your provision that the TRO would issue. There's no likelihood at all of success on the merits of a due process claim. Even the dissenting judge couldn't come up with an actual argument.
3.23.2005 4:55pm
Anderson (mail) (www):
On the issue of legislative history, see the unintentionally hilarious filing by Dennis Hastert et al. that's linked at How Appealing:

Basically, they chastise the 11th Circuit for failing to understand the statute they enacted. It's like that moment in "Annie Hall" when Marshall McLuhan steps out from behind the potted plant. Except in "Annie Hall," the idiot wasn't McLuhan.
3.23.2005 6:22pm
AF (mail):
1) Had it wanted to, Congress could easily have saved Terri Schiavo's life, by changing the substantive principles governing this sort of situation (eg, nobody goes off life support unless there's unanimous support of the family) or by declaring a moratorium on removing people from life support in disputed cases until substantive statutory principles could be worked out in a more deliberate fashion.

2) By failing to promulgate substantive principles, Congress must have known it was not saving Terri Schiavo. Why should courts preserve her life under the Constitution, which would require a tortured interpretation of the text, when Congress was not willing to preserve her life in a statute, which would have required only the will to do so?

3) While I agree with the judges' view on the merits of the case (ie, no substantial likelihood of success), the judges would have been wise to issue the TRO under the All Writs Act, citing the extraordinary circumstances surrounding the passage of the law. Then, they could have leisurely ruled in favor of Mr. Schiavo on a fully-briefed and argued motion to dismiss, or a motion for summary judgment.
3.23.2005 6:48pm
Is it possible the Republicans in Congress knew the law they passed would fail exactly as it is failing now, and in fact designed it to fail?

Is it possible the Republican Senators are acting out an elaborate ritual sacrifice to energize the GOP base?
3.24.2005 12:59am

Is it possible the Republicans in Congress knew the law they passed would fail exactly as it is failing now, and in fact designed it to fail?

The 11th circuit opinion certainly holds out the likelihood that they knew it might fail. Then again, I suppose the bill could have explicitly stated that FRCP rule 65 would be rewritten for this one case, but that would have been admitting the constitutional hazards of the bill too blatantly.

Given the rushed process of getting the bill through congress, it would violate Occam's razor to conclude this was a forseen machiavellian ruse. Conspiracies are unlikely when simple blundering explains their actions better.
3.24.2005 9:31am
AF (mail):
Congress may have thought that temporary relief would be granted, but even in the rushed timeframe, it would have been obvious that Schiavo's family would ultimately lose.
3.24.2005 9:59am
SupremacyClaus (mail):
The 11th Circuit has joined itself to this in history.

"There he offered his life for another prisoner and was condemned to slow death in a starvation bunker. On August 14, 1941, his impatient captors ended his life with a fatal injection. Pope John Paul II canonized Maximilian as a "martyr of charity" in 1982. St. Maximilian Kolbe is considered a patron of journalists, families, prisoners, the pro-life movement and the chemically addicted."


They, at least, had the candor to call it punishment. They had the impatience to end it with a lethal injection. The lawyer-criminal on the bench shows neither.

All lawyers off the bench. It is unbearable.
3.25.2005 10:15am
SupremacyClaus (mail):
I request a webcam be placed in the room.
3.26.2005 6:58am
SupremacyClaus (mail):
Here we go. From an article of March 26.

"Terri Schiavo's tongue and eyes were bleeding and her skin was flaking off, Weller said."
3.26.2005 12:17pm