"Demonstrably at odds" with the Constitution

As Schiavo's parents run out of legal options, a Republican appellate judge says Congress and the president exceeded their powers in adopting legislation to "save" Terri Schiavo.

By Tim Grieve
Published March 31, 2005 1:12PM (EST)

Judge Stanley Birch is no liberal.

By his own reckoning, Birch became active in the Republican Party in Georgia back when "there were few in Georgia who would admit to being a Republican." In 1980, he helped run a campaign for Mack Mattingly, who would become the first Georgia Republican elected to the U.S. Senate since Reconstruction. In 1990, Birch was appointed to the U.S. Court of Appeals for the 11th Circuit by President George H.W. Bush. In 2000, he came down on the side of George W. Bush in litigation over the recount in Florida. In 2004, Birch dismissed much of Justice Anthony Kennedy's decision in Lawrence v. Texas as non-binding dicta on the way to deciding that the state of Alabama can outlaw the sale of sex toys, and he refused to strike down a Florida law that prohibits gay couples from adopting children.

But even for a judge like Stanley Birch, the Republicans in Congress and the Republican in the White House have gone too far. Joining a majority of his 11th Circuit colleagues yesterday in rejecting the latest appeal from Terri Schiavo's parents -- the Supreme Court rejected the same appeal late last night -- Birch wrote a separate opinion defending judges from charges of "judicial activism" and complaining that Tom DeLay, Bill Frist and George W. Bush have trampled on the U.S. Constitution in their rush to "save" Terri Schiavo.

"A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of 'activist judges,'" Birch wrote. "Generally, the definition of an 'activist judge' is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution. In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people -- our Constitution."

While other judges have been content to assume the constitutionality of the emergency legislation enacted by Congress on behalf of Schiavo's parents while rejecting their appeals on other grounds, Birch said that it was time to cease indulging in that assumption. While Congress and the president might have had the constitutional authority to confer jurisdiction over the Schiavo matter on the federal courts, Birch said that they lacked the authority to dictate the way in which the courts exercised that jurisdiction. As Birch explained, the emergency legislation purported to tell the courts that they must apply a "de novo" standard of review to the case; that they could not consider whether Schiavo's parents claims were previously adjudicated in state courts; that they could not abstain from hearing the case on the grounds that proceedings were already under way in state courts; and that they could not decline the case on the grounds that remedies in state courts had not yet been exhausted. "Because these provisions constitute legislative dictation of how a federal court should exercise its judicial functions," Birch wrote, the Schiavo legislation "invades the province of the judiciary and violates the separation of powers principle."

Birch said that, "when the fervor of political passions moves the executive and legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow. Accordingly, we must conscientiously guard the independence of our judiciary and safeguard the Constitution, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo and her family and the recent events related to her plight which have troubled the consciences of many. Realizing this duty, I conclude that the [Schiavo legislation] is an unconstitutional infringement on core tenets underlying our constitutional system."

Birch said that the Florida legislature or Congress might re-write the laws governing end of life decisions, but that -- failing to do so -- they could not mandate that the courts change existing laws through judicial fiat. "Were the courts to change the law, as the petitioners and Congress invite us to do, an 'activist judge' criticism would be valid."

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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