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Thursday, March 31, 2005
By Steven L. Taylor

While I can understand that there were many who believed that Terri Schiavo should have kept alive no matter what. However, I still don’t understand one aspect of this situation and that is the insistence by those who believe that Terri should have been kept alive that the current situation constitutes judicial activism/tyranny. As best I can tell, the law of the state of Florida was followed, as was federal law (although I know some think that the law passed by Congress wasn’t followed, yet I think a plain reading of that law demonstrates that it was).

If the central figure in this judicial drama, Judge Greer, the Florida judge (a Republican and Southern Baptist, btw, according to published accounts), followed Florida law as written, and if the appeals courts in Florida followed the law, how is that judicial activism?

Judicial activism means the courts stepping outside the bounds of the law to essentially legislate from the bench (i.e., making stuff up). Roe v. Wade is a good example of judicial activism, wherein the Court utilized an unwritten constiutional right to privacy to discover (it was hidden in penumbras and such) a constitution right to abortion. Not only is this clearly “making stuff up” it had the effect of taking the power to regulate the topic in question by the democratically elected representatives of the people in the state legislatures (as well as in Congress) except in fairly narrow ways.

If the law says that the husband is the guardian and that in the absence of written instruction that a hearing is held to determine the wishes of a person unable to communicate those wishes, where is the judicial tyranny if the court simply did what the law required?

One can dislike the outcome. One can dislike the law. One can dislike Michael Schiavo. One cannot, however, argue judicial activism in this case. In this case judicial activism would have been re-inserting the tube.

It is as if many have decided that “judicial activism” = “I didn’t get want I wanted from the courts.” Hence, if the court creates a right to abortion, that is “judicial activism” and if they don’t re-insert the tube, that is “judicial activism”–never mind that in the latter case, the law was clearly followed, what seems to matter to many is simply the idea of getting what one wants out of the system.

If one doesn’t like the way this played out, work to change the laws in your state about persons in PVS or similar circumstances.

Indeed, if one is anti-abortion one wants for abortion what currently exists in regards to this situaiton: the ability to lobby legislature to regulate the topic as public policy rather than simply as the realm of bench.

You have now for regulating the role of families in this type of situation what you do not have in the realm of abortion. Consider that before you cry “judicial tyranny.” Examine the situation, not just what you wanted the outcome to be.

At a minimum: at least argue what you want to argue, i.e, that life is paramount over all and forget this business about judicial tyranny.

(Update: Part of today’s Beltway Traffic Jam)

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5 Responses to “Something I Continue Not to Get”

  1. caltechgirl Says:

    I don’t know about judicial activism, or congressional activism either, for that matter. What bothers me about the Schiavo case is that in this enlightened, civilized country, our laws condemned an innocent woman to a drawn out and inhumane death that we don’t allow the judicial system to impose on convicted murderers.

  2. Rooftop Report Says:

    Judicial Activism
    Dr. Steven Taylor, of Poliblog (a site you should have on your list of links) braves his brethren on the right and takes on the misguided cries of “judicial activism” when it comes to the Schiavo case. While I can…

  3. Lee P Says:

    Didn’t the Florida Supreme Court strike down a law passed by the legislature and signed by the Governor that would have saved Terri?

  4. Mac Diva Says:

    You’re right. The law was applied accurately. The amount of procedural due process given the Schindlers, who never had a viable case anyway, was amazing. More than 30 considerations by various courts. The judges, particularly Greer and Birch, were thoughtful and patient.

    “At a minimum: at least argue what you want to argue, i.e, that life is paramount over all and forget this business about judicial tyranny.”

    Couldn’t have said it better. The Right to Life advocates are dissembling. The only outcome that would please them would be to have their will substituted for Terri Schiavo’s. And mine. And yours. Despite their ludicrous demonization of Michael Schiavo, he was never really their target. An individual’s right to choose whether she wants life support after catastrophic injury or illness is. Absent letting that segment of the population usurp everyone’s right to decide, they will never be satisfied. The good news is that is not going to happen. As much of 82 percent of public supported the right of Ms. Schiavo to reject life support, according to polls.

  5. Jacquelyn Finney Says:

    The California Bar Journal, February, 1996 stated that U.S. District Court Judge Dickran Tevrizian proposed, promoted, and extrajudicially affirmed that California Rule of Court 989.3 is “consistent with the Americans with Disabilities Act”, as applied to the California courts.

    Does Judge Tevrizian’s proposal, promotion, and extrajudicial affirmation of a state law subject to constitutional challenge in federal court mean that Judge Tevrizian is a “judicial activist,” subject to recusal under 28 U.S.C. 455?

    The U.S. Supreme Court was asked this question in Finney v. Nugent, cert petition No. 04-1653 filed on June 6. The legal case documents are posted on http://www.hmohardball.com. I am the petitioner, a former federal fraud investigator, who is totally disabled by polio and has been denied access to the California courts.

    Thank you.

    Jacquelyn Finney


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