From yesterday’s NYT, Charles Fried, Harvard Law Professor and Solicitor General for President Reagan wrote: Federalism Has a Right to Life, Too

In their intervention in the Terri Schiavo matter, Republicans in Congress and President Bush have, in a few brief legislative clauses, embraced the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades.

On the substance, the law passed by Congress on Monday called for a federal court to decide whether Ms. Schiavo’s constitutional rights had been violated at the state level. In this regard, it is worth quoting at length from a concurring opinion by Antonin Scalia, the president’s favorite Supreme Court justice and occasionally my own as well, in a 1990 case from the Missouri courts involving precisely the same issues.

Indeed on all counts.

Nevertheless, despite the fact that Congress directly intervened primarly because Leadership wanted to (i.e., not because of a pressing and obvious need for congressional action, but some (e.g., Rush Limabugh) are arguing that this entire process is one of judicial activism and others believe that Jeb Bush should set the law aside and seize custody of Terri.

As Fried concludes:

What we have is many of the the same political leaders who denounced the Supreme Court’s decision forbidding states from executing those who committed their crimes as juveniles now feel free to parachute in on a case that had been within a state court’s purview for 15 years.

Indeed.

The bottom line is: how can conservatives argue that it is proper for those in government to do whatever they want just because that which they want is “right”? Isn’t that the charge that is constantly leveled at liberals and at the bench specifically?

8 Responses to “Congress, Schiavo and Federalism”

1. James Joyner Says:
   March 24th, 2024 at 11:47 am

   Clearly, activism is justified so long as it produces the desired outcome.

2. Steven Taylor Says:
   March 24th, 2024 at 11:49 am

   This does seem to be the underlying argument.

3. The Jawa Report Says:
   March 24th, 2024 at 11:53 am

   What the Loiusiana Purchase Could Teach Us About Terri Schiavo (UPDATED)
   UPDATE: This post to stay near the top until it is too late…. Thomas Jefferson believed to his dying day that the Louisiana Purchase was unconstitutional. He believed that the best way to accomplish his goal of westward expansion was…

4. Bob Rowley Says:
   March 24th, 2024 at 12:38 pm

   Now that the circus may be finally over, I must say, your postings on the matter have been clear and concise without the spin on the issue. Thanks for a job well done.

5. Steven Taylor Says:
   March 24th, 2024 at 12:43 pm

   Many thanks.

   I have tried to be as reasonable as possible.

6. Bob Says:
   March 24th, 2024 at 1:12 pm

   I don’t get the juvenile death case comparison. In one, a court invaded legislative authority, in the other the legislature invaded judicial authority. So, opposing the court there and supporting Congress here amount to the same thing: supporting legislative authority. Maybe you can explain what I’m missing.

7. Steven Taylor Says:
   March 24th, 2024 at 1:15 pm

   The objection in the juvenile death penalty case is that the SC was vitiating the ability of the states to deal with the issue.

   Congress, by extending jurisdiction in this case to the federal courts similarly took an issue that was the domain of the states and gave it over to the federal courts.

   It is a very similar outcome. And the logic is the same: because people in power thought it ought to be that way.

8. Truth. Quante-fied Says:
   March 24th, 2024 at 1:35 pm

   Dead End for Schiavo
   What we can do now is learn from the experience: why did this one case tug at our heartstrings so much, and why did it take close to fifteen years of litigation for us to realize it?