March 26, 2005

Did I "join the caucus"?

Hugh Hewitt writes this about me:
Ann Althouse joins the caucus of those agreeing with the view that Congress either did not intend to keep Terri Schiavo alive pending a de novo trial, or failed to effectuate that intent, and thus that criticism of the federal courts is misplaced.

I dread reading the rest of the post, because this first sentence misreads me so badly.

First, the "caucus" metaphor suggests that a group of like-minded politicos got together to promote a particular outcome and came up with this talking point. I was alone, watching TV and writing on my blog, not consulting with or communicating with anyone else. I never so much as sent out an email seeking a link. I called it the way I saw it.

Second, I never wrote about what Congress "intended," I wrote about the obligation of the courts to deal with the statutory text Congress produced. That text told the federal courts "determine de novo any claim" of a federal right. It did not say to give Schiavo "a de novo trial." People who would like to see the federal court redo everything the state court did, down to the appointment of Michael Schiavo as the guardian, keep saying "de novo," without focusing on what is to be done de novo. But, clearly, under the statutory text, it's the consideration of the federal rights.

I'm not pushing a particular outcome here. In fact, I'm sympathetic to the argument of erring on the side of life. But I'm trying to understand what Congress did and explain why so many federal judges have read the statute the way they did.

If Congress had written a different statute, the analysis would be different. If they had authorized to federal courts to do more, there would be more serious questions about the constitutionality of the statute.

Hewitt does not parse through the text of the statute as I did. He links us to the statute, and he quotes an email from an unnamed Remedies teacher. But that email is irrelevant as a criticism of what Judge Whittemore did, because it focuses on irreparable harm, and Whittemore found irreparable harm. Whittemore denied preliminary relief because of the failure to show "substantial likelihood of success on the merits," given the feebleness of the federal claims that were asserted. The unnamed Remedies teacher has nothing to say about this requirement.

The statute did not purport to eliminate the need to show likelihood of success, and if Congress had produced a text that did, the statute would have had a severe constitutional problem. Hewitt says it's wrong to presume that Congress would enact a "pointless" statute, and without the preserving Terri Schiavo's life, the effort would be pointless. But the federal courts did consider the federal rights, as directed in the statute, and because of the unlikelihood of success on the merits of those federal claims, it did not order relief. Are we supposed to substitute an imagined text that Congress didn't write, because of what we think some members of Congress were hoping would happen in the courts? What a ridiculous way to do statutory intepretation! How can anyone taking this position ever again complain about activists judges?

Hewitt continues:
The reason some scholars may have come to an opposite conclusion may be that they found the dismissal of Congressional intent acceptable in the face of the underlying issue of the law's constitutionality. Had the federal courts concluded that Congress could not do what it did, then respecters of the rule of law would have either to defer or argue that the damage done to principles federalism [sic] was worth the intrusion -- a much harder case to make than the argument concerning the intent of Congress.

This is not the basis for my conclusion. In fact, I took a lot of heat on the conlawprof email list arguing that Congress did have the power to pass this statute. I think some of the "intent" that Congress failed to express in the language of the statute was left out because it would have created constitutional problems. For example, if Congress had dictated to the federal courts that they issue a particular form of relief or if it had instructed the federal courts to redo the state law parts of the case, the statute would probably have been unconstitutional. My post was completely focused on following the text of the statute, and though this part of Hewitt's post is not specifically tied to me, I resent the implication that I am merging and overlapping issues this way. The fact is that Hewitt's post does not look carefully at the statutory text and does not deal with the specific textual points I made. He's the one making a mush of things.

Why, seriously, does he think so many federal judges took the position they did? Why did the United States Supreme Court not intervene? Not one Justice wrote a dissent from the denial of certiorari. All these able jurists are just outrageously sitting back, flouting the will of Congress and allowing a woman to die? Does that make any sense? And do you really want your readers and listeners to think the judicial system is not grounded in the rule of law?

UPDATE: A lot of emailers are pointing to cases they think were mishandled and asserting, based on these cases, that the judicial system really is not grounded on the rule of law. Failure to live up to the highest ideals of the rule of law does not mean the judges have lost touch with the imperatives of the rule of law. Don't let imperfection shatter your faith in what is one of the greatest resources created by humankind. But also -- those cases that you think were mishandled: are you sure the courts not only erred, but flouted law and simply did what they wanted? Or is your vision clouded because they didn't do what you wanted?

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