The last word on Terri Schiavo

Now that the Terri Schiavo case has reached its conclusion and every pundit alive has chimed in and used this tale in a disgustingly exploitative fashion yours truly shall now ad his two cents worth.

First a disclaimer: I sincerely hope that Terri Schiavo did not suffer and I’m sure she is now in a far better place. So, for reasons of simplicity I will not comment on the particulars of Terri’s struggle as I don’t now nor will I ever know what her wishes truly were.

This tragic set of circumstances was perhaps the most divisive news event of the last twenty years. The war in Iraq, White Water, and the Iran-Contra affair were all sensational and disruptive but the fervor generated by these episodes pales in comparison to the contemptuous feelings and bitterness that the Schiavo case engendered in the American psyche. There was no middle ground, no room for compromise, and no fence sitting. As the case was dragged through the mud on television, radio, and in print both sides, Michael Schiavo versus the Schindlers, demonstrated cold ruthlessness and ill will until literally minutes before Terri Schiavo ultimately passed away.

Lost in this public spectacle were the very real legal implications of the actors in this sensationalistic, real-life soap opera. From Jeb Bush and his brother President George to Judge Greer and the Florida State legislature to Congress and the Supreme Court the decisions reached in this matter could and may yet still have consequences that will reverberate through the Halls of Justice for years to come.

At the root of the issue is the relationship between husband and wife and the legal protections therein. It has been widely held and is a basic canon of family law in nearly every jurisdiction that in the unfortunate instance when one spouse is incapacitated the other spouse shall have custodial control over legal and medical decisions in their spouse’s stead. This legal tenet is the genesis of the gigantic shit storm that developed in the Schiavo case.

Over twelve years of litigation the Schiavo matter was heard at every level of the Florida state court system, including the Florida State Supreme Court. At every step along the way the Florida courts refused to remove Michael Schiavo’s custodial rights. In order to do so the courts would have had to found the state laws governing spousal protections improper or that Michael’s marriage to Terri was void. And since the marriage in question didn’t involve bigamy, incest, a minor, fraud, or duress, the marriage could not have been invalidated. Michael Schiavo’s infidelity after his wife passed into a persistent vegetative state would not have been actionable absent a desire by Terri to dissolve the marriage. So, in order to contradict Michael Schiavo’s desire to pull the now infamous feeding tube the Florida courts would have had to invalidate the state laws regarding spousal relationships.

The federal judiciary was also unwilling to set aside the Florida marriage laws. Both the 11th Circuit Court of appeals and the U.S. Supreme Court refused to even hear the case after a federal District Court upheld the state court actions. Federal judicial review of this case was only made possible by an ill-conceived law enacted by Congress that was literally a one-time-only proposition specific to only the Schiavo matter. The law passed by Congress effectively handcuffed the federal judge who heard the case by stating that review of the matter would be de novo. In essence, Congress told the judge to ignore all state findings in this case. Not only was this a constitutionally dubious act by Congress it was also incredibly unfair to the judge in that his findings could have obliterated twelve years of Florida court proceedings and called into question the validity of basic spousal protections.

The irony of this whole sordid display is that many of the same people who have railed against judicial activism in the past were clamoring for federal judicial intervention, a clear case of blatant judicial activism. Any federal interference in the Schiavo case would have reversed decades of expensive litigation and undermined Florida’s autonomy in rendering its own decisions in family law matters. Republican Tom Delay has been a lightning rod throughout this whole thing and his outrage is fundamentally hypocritical as he has been one of the most vocal critics of the so-called activist judges. Yet Delay and his counterparts in Congress mandated that which they held to be such a pernicious influence. They ordered federal judicial interference in a state action. Thankfully the federal courts refused to bow to Congressional pressure.

Another irony is that Congress’ actions almost ensured that Terri Schiavo’s feeding tube would not be reinserted. By using the federal judiciary as a political tool Congress underestimated the strength of its position. Federal judges don’t like being handed political hot potatoes and usually respond in kind. It was easy for Congress to make their pronouncements from high in their collective ivory towers while making the judiciary their patsies in this case of tug o’ war. Congress gets painted as the nights in shining armor riding to the rescue of a poor damsel in distress while the federal district court judge, the 11the Circuit, and the SCOTUS are so many black clad tyrannical despots bent on Terri Schiavo’s death.

This type of disingenuous political grandstanding has been played out time and time again. Congress has repeatedly thrown the judiciary to the wolves in an attempt to glorify themselves while they eagerly wait for there black-robed arch rivals to be torn to pieces in the court of public opinion. And they‘ve done a damn good job of it too. In an instance where the courts have steadfastly upheld the law they are still being vilified for their alleged activism. Admittedly the courts have almost routinely undermined democratically enacted laws but this time they attempted to stay out of the fray yet they are still maligned by the very conservatives who have belittled them for taking too prominent a role in legislative action.

This, my friends, is the very definition of hypocrisy. This, my friends, is also a case of a faith of convenience. And a faith of convenience is a hollow faith.