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Payback time?

Widespread anger over increasingly imperial courts is fueling demands for political action to check this very un-American trend toward unchecked judicial authority

Issue: "Schiavo’s fight for life," April 2, 2005

When the United States Court of Appeals for the 11th Circuit ruled against keeping Terri Schiavo alive, Judge Charles Wilson dissented, noting that the court's denial "frustrates Congress's intent. . . . The entire purpose for the statute was to give the federal courts an opportunity to consider the merits of Plaintiffs' constitutional claims with a fresh set of eyes. Denial of Plaintiffs' petition cuts sharply against that intent, which is evident to me from the language of the statute, as well as the swift and unprecedented manner of its enactment."

The 12 judges of the circuit court had an opportunity to abide by the clear mandate of Congress, and they refused by a vote of 10 to 2 to listen to another branch of the federal government. With that display of contempt for legislators, the judges involved have done enormous damage to the idea that justice accompanies the rulings of the federal courts. That notion has been under some strain for some time, given the Supreme Court's newfound affection for foreign law, but rarely has the federal bench matched the arrogance of state courts in Massachusetts and California that simply tossed out 215 years of American law in announcing that marriage is a protected right for partners of the same sex.

Congress in this case had intended to prevent injustice by mandating a new review of all the facts of the Schiavo case, and by moving with such urgency to grant Terri Schiavo's parents special standing in the federal court. Congress, aware that deep questions of unfairness surround this long and exhausting proceeding, wanted the federal courts to start from the beginning, allow all facts to be assembled and evidence presented, and then rule. And the judges said, with a life at stake, don't bother.

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When Congress returns from its recess, it will have to consider its next move. Surely the Senate, already deeply enmeshed in a debate over the future of the judiciary via the nomination process, will have a series of questions to pose future federal court nominees. The federal bench has courted political paybacks in the past, most notably when its agenda of economic laissez faire clashed sharply with the expectations of President Franklin Roosevelt and his large Congressional majorities. A chastened Supreme Court reformed itself before Roosevelt could push through his court-packing plan. Widespread anger over increasingly imperial courts is fueling demands for political action to check this very un-American trend toward unchecked judicial authority.

That rebellion against the robes will gets its first display in the vote to end the Democrats' many filibusters of the president's nominees to the federal circuit courts. Those Republicans who vote against that rule change will effectively end their national ambitions, and may be announcing their retirement.

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