Federalism Has a Right to Life, Too
By CHARLES FRIED
Published: March 23, 2005
Cambridge, Mass. â€” 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.
"The various opinions in this case portray quite clearly the difficult, indeed agonizing, questions that are presented by the constantly increasing power of science to keep the human body alive for longer than any reasonable person would want to inhabit it," Justice Scalia wrote. "The states have begun to grapple with these problems through legislation. I am concerned, from the tenor of today's opinions, that we are poised to confuse that enterprise as successfully as we have confused the enterprise of legislating concerning abortion - requiring it to be conducted against a background of federal constitutional imperatives that are unknown because they are being newly crafted from term to term. That would be a great misfortune."
Justice Scalia went on to say that he would have preferred that the court had announced, "clearly and promptly, that the federal courts have no business in this field." The problem, he insisted, was that "the point at which life becomes 'worthless,' and the point at which the means necessary to preserve it become 'extraordinary' or 'inappropriate,' are neither set forth in the Constitution nor known to the nine justices of this court any better than they are known to nine people picked at random from the Kansas City telephone directory."
Congress's intervention in the Schiavo case is equally mischievous. It demanded that a federal court decide this issue without giving any deference to state law or the previous course of state court proceedings. This is exactly the sort of episodic federal intervention without regard for the integrity of state processes that plagued death penalty cases for years, and that Congress moved to end when it passed the Antiterrorism and Effective Death Penalty Act of 1996. And the real possibility now of the case bouncing back and forth between the federal district court and the federal appeals court, and maybe even back to state court, is just what Congress tried to shut down in death penalty cases.
For years now, Congress has more and more stringently demanded that federal court intervention be limited to cases where the state courts have acted not just technically incorrectly, but with egregious lack of reason. Whatever might be said of the Florida state court proceedings in this case, they certainly have not crossed that line, and indeed probably accord with what state courts all over the country have ordered or permitted for years in these difficult and agonizing cases.
Finally, the law passed by Congress on Monday was an obvious attempt - under the pretense of allowing the determination of federal constitutional rights - to delay the outcome decreed by Florida state law with the hope of making that outcome impossible. That is precisely the worrisome tactic employed with increasingly imaginative stays and orders of re-litigation in a number of federal courts, most noticeably the Court of Appeals for the Ninth Circuit, which covers nine Western states. And it is also precisely the sort of tactic that Congress sought to discipline in the Effective Death Penalty Act.
It is no good for politicians to try to justify this absurd departure from principles of federalism and respect for sound and orderly judicial administration by saying that, in this case, the life at stake is unquestionably innocent. For in many of the death penalty cases, the claim has also been that the prisoner had at least unfairly, and perhaps even incorrectly, been condemned to death.
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.
Charles Fried, a professor at Harvard Law School, was solicitor general of the United States under President Ronald Reagan.