A Conservative Critique of the Conservative Commentary on the Terry Schiavo Case

Conservatives correctly object to "judicial activism." Although this objection takes a variety of forms, the core objection is that judges too often engage in major policymaking under the guise of "interpretation," especially constitutional interpretation. Much of the conservative criticism focuses, again correctly, on the federal courts, especially on the Supreme Court of the United States, although some state courts do not lag far behind.

The current reporting on the Terry Schiavo case has produced criticism of the federal courts from a significant number of conservative commentators. Although the criticism varies from commentator to commentator, there is one recurring complaint that is disturbing in light of the usual conservative objection to judicial activism. Stated concisely, the criticism is this: In the recent statute conferring jurisdiction on the United States District Court for the Middle District of Florida, it was the intent of Congress that the federal courts conduct an independent inquiry into the facts of Ms. Schiavo’s case, and the subsequent refusal of those courts to conduct such a hearing involves a "runaway judiciary" that has improperly disregarded Congress’s intent that an independent federal inquiry be conducted into the facts. This criticism made by Fred Barnes, on the nightly Brit Hume news hour on Fox News, and by Hugh Hewitt on the Weekly Standard web site, among others.

The critics are wrong on several counts. First, their criticism does not accurately represent what Congress did in the statute. Second, if Congress had done what the commentators claim it did, Congress would have been acting unconstitutionally. Finally, to the extent that the critics want the federal courts to hold an independent factual hearing under the circumstances of Ms. Schiavo’s case, they are arguing for the courts to engage in the same kind of policymaking to which they object when it is done in furtherance of liberal positions on abortion, the death penalty, and gay rights. To understand why these things are so, it is necessary to understand accurately what the statute actually does and what the U.S. Constitution permits Congress to do (and forbids it from doing) in conferring authority on federal courts. What follows may seem complicated, but it is precisely the commentators’ ignorance of the basic rules discussed below that is producing the problem.

The first section of the statute is basically a conferral of subject-matter jurisdiction on the federal courts. It authorizes the U.S. District Court for the Middle District of Florida to exercise jurisdiction in "a suit or a claim by or on behalf of Theresa Marie Schiavo for the alleged violation 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 her life." It is important to recognize that this section of the statute only confers jurisdiction to adjudicate rights that Ms. Schiavo possesses under federal law. The second section of the statute—the part that the critics are focusing on—gives Ms. Schiavo’s parents "standing" to bring a suit under the act, and it eliminates certain defenses under existing federal law to any federal claim. (These defenses would otherwise require the federal courts to give effect to the Florida state-court proceedings.) The third section of the act states that after a determination of the merits of any suit brought under the act, the district court "shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." Section five of the statute then states: "Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several states."

All U.S. District Courts, including the U.S. District Court for the Middle District of Florida, already had subject-matter jurisdiction under Title 28 of the U.S. Code to entertain suits on federal claims, including constitutional claims, that might exist by or on behalf of Ms. Schiavo. Thus, the first section of the statute was surplusage. The second section was indeed important in giving Ms. Schiavo’s parents the specific right (standing) to bring a federal claim on her behalf and in eliminating defenses that would have existed to that claim under pre-existing federal law. However, it is significant that throughout the statute, Congress made it clear that it was it was not creating "new" federal substantive rights for Ms. Schiavo, but was predicating the ability of the federal courts to take action of any sort on the existence of whatever rights there might be under existing federal law.

Article III of the U.S. Constitution defines and limits the power that the federal judiciary can exercise—i.e., the subject-matter jurisdiction that Congress can give the federal judiciary. Specifically, Article III, Section 2 of the Constitution contains a list of cases that the federal courts are permitted to hear, if Congress chooses to confer jurisdiction on those courts to hear them. Unless a category of cases appears on this list, Congress has no constitutional power to give the federal courts jurisdiction over it, and the federal courts have no constitutional power to adjudicate it. Despite the fact, as observed above, that the first section of the act was surplusage, it is clear that Congress was basing the power of the federal courts to adjudicate Ms. Schiavo’s case on that category of Article III, Section 2 that authorizes the federal courts to adjudicate "cases . . . arising under this Constitution, [and] the Laws of the United States." In fact, there is no other category of cases in Article III, Section 2 that would allow Congress to confer jurisdiction on the federal courts to hear Ms. Schiavo’s case. It is important to note that Article III does not permit federal courts to be given the power, or to exercise the power, to conduct hearings into the facts, de novo or otherwise, apart from the categories of cases appearing on the Article III list. That is, unless the federal courts are adjudicating a case on the list, they have no power to do anything.

This brings us to the core of the problem with Ms. Schiavo’s case. Stated simply, she has no federal rights. She has no federal statutory rights, and Congress did not create any. She also has no federal constitutional rights. This last statement may be a surprise to some people, especially the commentators described above, but it is indisputably true. After all, does Ms. Schiavo not have a "constitutional right to life" that can be protected by the federal courts? When this question was asked of one lawyer on a recent television news broadcast, the lawyer, perhaps embarrassed by the correct answer to the question, replied, "Of course she does." He was wrong, at least as the question was stated. No provision of the United States Constitution, not the Due Process Clause of the Fourteenth Amendment, not the Due Process Clause of the Fifth Amendment, not any provision, gives Ms. Schiavo an absolute right to life.

True it is that if the State of Florida or any other state attempts to take someone’s life, the state must first provide them with due process—that is, a court hearing in which they have an adequate opportunity to be heard. But Florida was not attempting to take anyone’s life. Rather, it had set up laws allocating to private persons (Ms. Schiavo’s husband in this case) the right to make the decision about whether continued treatment of people in Ms. Schiavo’s condition was appropriate. It had also set up procedures allowing the decision to be challenged. These laws and procedures have been followed. The key fact is that both Florida’s laws and procedures and the way they were applied in the case satisfied all requirements of due process. This does not mean that the laws and procedures were perfect. Doubtless they might be improved in a number of ways. But the Due Process Clause of the Fourteenth Amendment does not require perfect procedures, only adequate ones, and the Florida procedures are clearly adequate. Similarly, the Due Process Clause of the Forteenth Amendment does not require that facially adequate procedures be applied "perfectly," or applied in a way that produces a "perfect" result, assuming such a thing is possible. All due process requires is that the procedures be applied in a neutral and unbiased fashion, which they appear to have been, disturbing as that may seem to those who want a different result in the case.

When the plaintiffs in the district court presented their case to the district judge, the remedy for which they were asking was a temporary restraining order to have Ms. Schiavo’s feeding tube replaced pending a new ("de novo") determination of the facts concerning her condition. For a temporary restraining order to be granted, the plaintiff must meet a four-factor test, one element of which is a showing that there is "a probability of success on the merits." In the district court, the plaintiffs essentially presented "procedural due process" claims of the sort described in the last paragraph. That is, they presented claims that either focused on the inadequacy of the Florida procedures or on the inadequacy of the Florida courts’ application of the procedures. The district court, correctly rejected these arguments and found the procedures and their application sufficiently adequate to satisfy due process. (Remember, this does not mean the procedures were either perfect or were applied perfectly. It just means they were not so imperfect on their face or as applied that they violated due process.) This being the case, the district judge was forced to conclude that the plaintiffs could not meet the core requirement to obtain a temporary restraining order—i.e., that they show a probability of success on the merits. Thus, under the circumstances, it would have been improper for the court to hold any sort of factual hearing about Ms. Schiavo’s condition, since whatever her condition really is, the plaintiffs could not win the case, even if the district judge took a different view than the Florida courts of the facts after an independent hearing. Just because the (second) federal fact finder might determine the facts differently than the (first) state fact finder does not mean that the state fact finder violated due process in making its factual determinations.

I think the "no probability of success" determination, although not wrong per se, was a technically incorrect reason for the result in the district court, but it was close. The correct reason was this: In federal jurisdictional doctrine, there is a rule that when a federal court’s subject-matter jurisdiction is based on a federal claim (statutory or constitutional), the claim must be "substantial," that is, non-frivolous. If a federal claim is substantial, jurisdiction exists, even if the claim ultimately fails. However, if the claim is so implausible, based on prior authority or otherwise, that it is frivolous, the court must dismiss the case for lack of subject-matter jurisdiction (fundamental power to adjudicate). I believe the claims presented to the district court were frivolous and, therefore, that the district court should have dismissed the action for lack of subject-matter jurisdiction due to the absence of a substantial federal question. The result would have been the same—that is, the plaintiffs would not have obtained the relief that they sought—but I believe it would have been the more technically correct result. This is because the first obligation of the federal courts is always to determine whether they have subject-matter jurisdiction over an action—i.e., basic power to act. Only after they have determined this question in the affirmative do they then have power to do other things, such as determine the propriety of issuing a temporary restraining order.

This brings me to a reassessment of the commentators’ criticism of the courts outlined above. At the very least, the criticism is incompetent, because it attempts to decouple the "de novo factual hearing" requirement of the act from the district court’s basic subject-matter authority. (Again, the federal courts do not have power, and cannot be given power, to hold hearings in the abstract if there is no proper basis for exercising subject-matter jurisdiction.) In other words, even if the facts are as the plaintiffs contend in some "objective" sense, they cannot win under any existing federal law, statutory or constitutional, and Congress went out of its way in the statute not to create any new federal rights.

However, I believe more than legal incompetence is at work here. The conservative critics I cited above, as well as the others who make this criticism, are smart people. They could have obtained this basic information from someone who is unbiased and qualified to give it. Yet they instead jumped to the erroneous conclusion that the federal courts were scofflaws.

Consequently, the commentators are guilty of doing the same thing they accuse liberals of doing. They are so overwhelmed by their belief that a moral injustice is being committed that they believe the federal courts involved in the case should have made a policy judgment to disregard long-established restrictions on their power and do "what Congress intended" instead. Whatever this would have amounted to, it would not have constituted adherence to the rule of law for which the commentators on other occasions express great fondness.

Maybe the Democrats who are filibustering President Bush’s judicial appointments have it right. Maybe they realize that many of those who advocate judicial restraint really want judges who will make the same kinds of judicial policy judgments that they purport to abhor, as long as the policy judgments are made in a conservative direction. In any case, the critics certainly sap their credibility on the issue of judicial activism when they go off the deep end as they have on the Schiavo case.

Of course, the commentators may simply write me off as a pin-headed, liberal professor. The pin-headed part I can’t refute, and my students will probably be happy to provide additional evidence of my pin-handedness on request. As far as liberal is concerned, in presidential elections, I have voted for George Bush the younger twice, Bob Dole once, George Bush the elder twice, Ronald Reagan twice, and Gerald Ford once. The last time I voted for a Democrat in a presidential election was when I voted for George McGovern over Richard Nixon, but knowing everything I know today, I wouldn’t do it again. I am in favor of privatizing ALL of Social Security. I am in favor of the flat tax. I think supply side economics is not only correct, but has been demonstrated so to be by irrefutable evidence. I think global warming is a crock. I think the anti-war movement is led by Communists. I could go on. So you can call me a pinhead, but don’t call me a liberal.

Ralph U. Whitten, Professor of Law