Early Wednesday morning, a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Georgia declined to reverse Tuesday’s district court order refusing to reinsert Terri Schiavo’s feeding tube.
This appellate ruling further increases the likelihood that Terri, who is now well into her fifth day of state-court-ordered starvation and dehydration, will die before her case can receive the full federal court review prescribed by an emergency law passed by congress and signed by the president in the wee hours of Monday morning. Nevertheless, the Eleventh Circuit has produced the first glimmer of hope for those fighting for Terri’s life: a masterful dissent by Circuit Judge Charles R. Wilson. As the case moves on to higher tribunals, Judge Wilson has charted a ready and persuasive roadmap for overturning the mind-numbing decisions that would let a defenseless, brain-damaged woman wither and die without ever having her day in federal court–the day that congress and President Bush plainly intended to give her.
The majority, comprised of Judges Edward Earl Carnes (appointed by President George H. W. Bush in 1992) and Frank M. Hull (appointed by President Clinton in 1997), was exceedingly deferential to District Judge James D. Whittemore, who, in turn, had been exceedingly deferential to state Circuit Court Judge George Greer of Florida. [See here.] Whittemore had rejected a request for a preliminary injunction that would have reinserted Terri’s feeding tube while the case was heard on the merits on the ground that the Schindlers (Terri’s parents and the plaintiffs in her name) had not demonstrated a likelihood of success. To sustain that holding, the Eleventh Circuit majority did not need to find that Whittemore had been wrong but merely that he had not been so careless as to have “abused his discretion.” To the contrary, they found he had carefully considered the matter and blessed Whittemore’s extremely narrow–indeed, counter-lingual–construction of Terri’s Law, enacted Monday morning.
Judge Wilson, a former United States attorney in Florida whom President Clinton appointed to the Eleventh Circuit in 1999, disagreed–intensely. Principally, he seized on a new issue–not considered below by Judge Whittemore, but now raised by both the Schindlers and the Bush Justice Department under Attorney General Alberto Gonzales, who intervened by filing a supportive “Statement of Interest” with the court. That issue is the All Writs Act (28 U.S.C. Sec. 1651).
This act is a special power of courts to issue orders in aid of their own jurisdiction. As Judge Wilson explained, the authority of a court to command that an action (such as the reinsertion of Terri’s feeding tube) be taken under the All Writs Act is significantly different in its purpose from an order having the same effect but issued as a preliminary injunction. In the latter case, the injunction is for the benefit of the litigant, who is thus called on to satisfy the test that requires a demonstration of probable success on the merits. To the contrary, the All Writs Act is for the protection and integrity of proceedings before the public’s courts. It does not allow courts to create jurisdiction, but it does empower them to preserve the jurisdiction they already have by staying the hand of outsiders whose actions could prevent the court from considering issues and bringing litigation to a natural, rather than a forced, conclusion.
Although they recoil at the very notion, it is a fact of constitutional life that judges are essentially supposed to take their marching orders from congress–which both prescribes laws and defines the jurisdiction of federal courts. Here, Judge Wilson observed, the plain intent of the law Congress passed
is to maintain the status quo by keeping Theresa Schiavo alive until the federal courts have a new and adequate opportunity to consider the constitutional issues raised by Plaintiffs. The entire purpose of the statute was to give the federal courts an opportunity to consider the merits of Plaintiffs’ constitutional claims with a fresh set of eyes. Denial of Plaintiffs’ petition cuts sharply against that intent, which is evident to me from the language of the statute, as well as the swift and unprecedented manner of its enactment. Theresa Schiavo’s death, which is imminent, effectively ends the litigation without a fair opportunity to fully consider the merits of Plaintiffs’ constitutional claims.
He is, of course, right about that. And in a case where, again and again, it has become clear that terrorists seeking to kill Americans are given a far better deal in our courts than a defenseless woman convicted of no crime, how fitting it is, once again, that we meet the All Writs Act.
The last time the public encountered it was only five months ago, in connection with the al Qaeda terrorists captured on the battlefield, trying to kill American troops, and being held in Guantanamo Bay as unlawful enemy combatants. Notwithstanding that its decision effectively permitted our enemies to use our courts as a weapon in their war against us, the Supreme Court was insistent that those terrorists get their day in federal court, through extraordinary, unprecedented habeas corpus proceedings. The only problem: the habeas corpus statutes do not provide detainees with a right to counsel–the vast majority of American citizens who file habeas petitions must go it alone. No problem, found U.S. District Judge Colleen Kollar-Kotelly. On October 20, 2004, she determined that to effectuate their vitally important claims, and make sure they had maximum persuasive force, she would use the All Writs Act as authority to give our terrorist enemies the assistance of counsel…at the expense of the American taxpayer.
By contrast, the Schindlers are not asking the public to foot the bill for their lawyers. They just want what Congress said they should have, and what our courts can’t seem to give al Qaeda fast enough: their day in court. They ask only the opportunity to fully test all of their constitutional claims and all of the suspect findings in Florida before their daughter is starved and dehydrated to death by the order of a court.
The Eleventh Circuit majority did not see it that way. They rejected the All Writs Act as a path to reinserting the tube because they found it was unavailable when other provisions of law (like the preliminary injunction statute) apply–something that might be news to the judges handling the Gitmo cases purportedly governed by the habeas corpus statutes. But, as Judge Wilson sagely countered, by failing to reinsert the tube:
we virtually guarantee that the merits of Plaintiffs’ claims will never be litigated in federal court. That outcome would not only result in manifest injustice, but it would thwart Congress’s clearly expressed command that Plaintiffs’ claims be given de novo review by a federal court.
Judge Wilson also disputed his colleagues’ conclusion that the Schindlers could not succeed on the merits–the finding on which the refusal to grant the injunction on ordinary grounds was based. Particularly when the irreparable finality of death looms, he argued, a party seeking an injunction need not “establish that he can hit a home run, only that he can get on base, with a possibility of scoring later.” Here, Terri’s parents have raised significant due process issues: the fairness and impartiality of the state trial, the fact that Terri did not have independent counsel, the denial of equal protection, and unjustified burdens on her free exercise of religion. Again, it was the manifest purport of Terri’s Law that these claims be fully and carefully considered in the federal courts before Terri’s death could be brought about by a state legal process.
The case now proceeds on two probable tracks: an appeal to the entire Eleventh Circuit sitting en banc, and an application to Supreme Court Justice Anthony Kennedy (the Circuit Justice for the Eleventh Circuit) for an emergency stay with a reinsertion of the feeding tube. Judge Wilson has given them a compass.
Meanwhile, Terri has been starving and dehydrating for over 110 hours.
–Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.