Congress clears its throat.

• Author: Hartnett, Edward A.
• Position: Federal jurisdiction on the Schiavo case

The Schiavo case involved many difficult issues including diagnosis, prognosis, causation, intent, procedural due process, substantive due process, and litigation strategy. This article does not address any of those complex issues, (1) but instead discusses the Act of Congress providing for federal jurisdiction and the remarkable opinion issued by Judge Stanley F. Birch, Jr., finding that Act unconstitutional. Although not a single one of the other ten circuit judges who participated in the case joined his opinion-and two specifically rejected it--Judge Birch's opinion attracted considerable attention. Andrew Cohen of CBS News, for example, praised Judge Birch as "the only true unvarnished hero" in the case. (2)

The opinion is remarkable in a number of ways. It decries judicial activism, but goes out of its way to conclude that an Act of Congress is unconstitutional. It emphasizes judicial duty to the law, but neither discusses the legal standard applicable to the decision then before the court nor even supports the vote that Judge Birch casts on that decision. It makes far-ranging and unsupportable legal assertions, but takes nearly all of them back in response to Judge Tjoflat's dissent. Despite its remarkable flaws, Judge Birch's opinion nevertheless does serve to bring into focus significant concerns about singling out for federal jurisdiction an individual case already decided in state court.

On March 21, 2005, the President signed into law an Act for the Relief of the Parents of Theresa Marie Schiavo. (3) That act did not create any substantive rights, but instead provided for federal jurisdiction in the United States District Court for the Middle District of Florida over "a suit or 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." (4) The act also provided standing for Schiavo's parents, called for a de novo determination notwithstanding state proceedings, and prohibited delay, abstention, or imposition of an exhaustion requirement. (5)

On March 22, the District Court denied a motion for a temporary restraining order, and a panel of the Court of Appeals for the Eleventh Circuit affirmed the next day. (6) On March 25, the District Court denied a second motion for a temporary restraining order, and a panel of the Court of Appeals again affirmed. (7) Schiavo's parents petitioned for rehearing en banc, and on March 30, the Court of Appeals denied the petition. (8) Judge Birch concurred in the denial of rehearing en banc and wrote an opinion concluding that the Act for the Relief of the Parents of Theresa Marie Schiavo, signed into law nine days earlier, was unconstitutional. (9)

1. JUDICIAL ACTIVISM

   When courts of appeals deny rehearing en banc, they rarely issue opinions. Indeed, they rarely even report individual votes, instead simply reporting that the requisite majority did not vote in favor. In the Schiavo case, five of the eleven participating judges revealed and explained their votes. Three of them explained why they did not vote in favor of rehearing en banc; (10) two explained why they did vote in favor. (11) The majority of judges, as is traditional, neither revealed nor explained their vote. Judge Birch spoke out. (12)

   Judge Birch begins and ends his opinion with a discussion of judicial activism, and defends his actions as avoiding judicial activism. For some, the term "judicial activism" is an empty epithet, meaning little more than that the one who hurls the term disagrees with a particular decision or line of decisions. (13) While there is little doubt that some use the term this way, (14) it is nevertheless "a helpful category" if used with some care because "it focuses attention on the judiciary's institutional role rather than the merits of particular decisions." (15)

   Judge Birch defines a judicial activist as "one who decides the outcome of a controversy before him or her according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution." (16) The contrast between personal conviction and law is not a very helpful definition of judicial activism, for few (at least among those who think that such a distinction can be drawn at all) would defend judges deciding cases on the basis of personal conviction rather than law. (17) Indeed, decision according to personal conviction rather than law may be more properly characterized as lawlessness rather than activism. (And who would possibly defend judges deciding cases on the basis of insincere personal convictions?)

   The emphasis on precedent is more helpful: one dimension of judicial activism is a lack of deference to the legal interpretations of other judges. (18) But activism is better understood more generally as a lack of deference to the legal interpretations of others. As Professor Ernest Young has put it, the "common thread" that finks the various forms of judicial activism is that "they all involve a refusal by the court deciding a particular case to defer to other sorts of authority at the expense of its own judgment about the correct legal outcome." (19) Probably the most widely noted form of judicial activism involves a lack of deference to elected representatives. (20)

   It is remarkable that in an opinion framed by criticism of judicial activism, Judge Birch concludes that an Act of Congress is unconstitutional without so much as mentioning the presumption that Acts of Congress are constitutional or addressing whether a court owes any deference to the constitutional interpretation of Congress and the President. (21) Instead, he contrasts the fervor and passion of Congress and the President to his own "dispassionate discharge of duty." (22) Yet as Professor Richard Freer has noted, the decision to write the opinion at all suggests that Judge Birch "feels very strongly." (23)

   Perhaps still more remarkable in an opinion that decries judicial activism is the vision of the judicial role the opinion trumpets: far from the modest (and correct) judicial duty of deciding particular cases, Judge Birch proclaims that "when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene." (24)

2. THE QUESTION BEFORE THE EN BANC COURT

   The question before the full Court of Appeals was whether to order rehearing en banc. The question to be decided on a petition for rehearing en banc is not whether the district court judgment was correct--that is the question to be decided by the en banc court if the petition is granted. Thus by reaching out to decide the constitutional issue, Judge Birch was engaged in another form of judicial activism: reaching out to decide an issue not yet before him. (25)

   Rule 35 of the Federal Rules of Appellate Procedure states:

   An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

   (1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or

   (2) the proceeding involves a question of exceptional importance.

   Despite intoning that "the time has come for dispassionate discharge of duty," (26) Judge Birch never mentions this standard.

   Nor does he apply it. Judge Birch concurs in the denial of rehearing en banc, but his explanation has nothing to do with the applicable legal standard. On the contrary, to the extent that his opinion is relevant to the question before him at all, it supports the opposite conclusion: that the case "involves a question of exceptional importance"--whether an Act of Congress creating federal jurisdiction is unconstitutional--and therefore should be reheard en banc.

   Indeed, if Judge Birch were correct in his constitutional analysis, then the panel decision was wrong: it should not have affirmed the District Court's order. Instead, it should have vacated the District Court's order with instructions to dismiss the case for lack of jurisdiction. Judge Birch seems to think that when a court of appeals determines that federal jurisdiction is lacking it should not take "any further action." (27) But this is clearly wrong. (28) The point becomes obvious when one considers a case in which a district court granted relief in the absence of jurisdiction. Surely a court of appeals should not refuse to take "any further action" in such a case, thereby leaving the district court decision in place. Instead, when a court of appeals decides that federal jurisdiction never existed in a case, it should vacate prior decisions in the case and order the dismissal of the case for lack of jurisdiction.

   Judge Birch's opinion is remarkable, then, both in reaching out to decide a constitutional issue not before him and in presenting an argument that the panel was wrong as an explanation for why he concurs is declining to disturb what the panel did.

3. TREATING STATUTORY AND COMMON LAW DOCTRINES AS CONSTITUTIONAL REQUIREMENTS

   Judge Birch makes a number of startling arguments that seek to elevate statutory and common law principles into constitutional principles. He claims that the Rooker-Feldman doctrine, (29) which bars inferior federal courts from exercising appellate jurisdiction over state court judgments, should have been applied. (30) The problem with this claim is that the Rooker-Feldman doctrine is not a constitutional doctrine at all. Instead, that doctrine is a product of statutory interpretation. As a unanimous Supreme Court reiterated on the very day that Judge Birch issued his opinion, "the District Courts in Rooker and Feldman lacked subject matter jurisdiction" because the statute governing the Supreme Court's jurisdiction, "as long interpreted, vests authority to review a state court's judgment...