And it is kinda unlike a death penalty case as it involves a person in a persistent vegetative state (or something very near to one) who expressed the desire to several friends and family not to be in such a state.

It is also unlike a death penalty case as it has involved dozens of judges, dozens of trials, multiple acts of pandering, midnight acts of Congress, and the unrestrained demonization of the victim’s family.

So like most analogies this one only goes so far.

The fundamental issue in this case is a finding made by the trier of fact with which you don’t agree. In our system of law, a finding doesn’t have to be agreeable to all critics in order to be proper, and since no court has found abuse of discretion on Judge Greer’s part, and no court has found gross errors of fact on his part, and no court has found any likelihood that a de novo review would produce a different result, we are where we are fifteen years after Terri Schiavo’s heart stopped.

One difference, take it or leave it, is that if Congress had authorized collateral review (or even relitigation) generally of federal issues in a district court, ignoring normal res judicata issues, that would be one thing. But I think it would be unusual even in the habeas context for, when no prior law exists, for Congress to decree review of a specific prisoner’s case. In other words, there is an expectation of habeas review in criminal cases; there was no expectation of federal review for Schiavo. Changing the rules in the middle of the game seems a little off putting.

As for state action, I think the real issue is that keeping the tube in is state action, not removing it. The issue is that the court determined Terry’s wishes were to not recieve nourishment this way, not that Michael had the power to remove it, or that the state had the power to remove it. Receiving care without consent is a battery, and the state has the duty to refrain from care when the patient invokes her right. Whether we believe the evidence (and some does seem dubious) or believe Michael is actually invoking Terry’s intentions (also doubtful) are different issues.

Justice Scalia’s majority opinion in Bray v. Alexandria Women’s Health Clinic withers Souter’s dissenting citation of Shelley v. Kraemer by saying, “Any argument driven to reliance upon an extension of that volatile case is obviously in serious trouble.”

Good call on Shelley, Patterico — my understanding of the state action doctrine was simplistic. I think that Shelley, though, doesn’t do all that you’d like it to. It’s application is spotty (see the dueling dissents of Justices Douglas and Black in Bell v. Maryland) and the branch of the “entanglement doctrine” Shelley represents has mainly been limited to racial civil rights cases, prejudgment attachment proceedings (Lugar v. Edmonson Oil Co.), and peremptory challenge litigation (Georgia v. McCollum).

Closer the the point at hand, the state action doctrine was relied on by Judge Whittemore in the First Amendment portion of his denial of an injunction. The 11th Circuit had two chances to correct him, and didn’t.

I think the guy could get himself into court, or sued, somehow.

So what? The question is whether he *needs* the courts to accomplish the discrimination. Answer: no. By contrast, Schiavo can’t legally starve his wife without the court’s say-so.

Richard Bennett:

But you’re the one who’s kidding yourself, Patterico. This is a case about medical care, not about crime and punishment.

Are you really an attorney?

You found me out, Richard Bennett. I am not really an attorney. I simply play one on TV. And the internet.

In context, I thought it was clear that I wasn’t asking for people to simply list any differences they could think of between this case and a capital murder case. I was asking for *relevant* distinctions, accompanied by logical arguments (rather than snide insults like your questioning whether I am a lawyer), that rendered Congress’s action outrageous.

This is a case about life or death. Whether life or death is appropriate depends upon factual findings made by a state court. Congress provided for review of those findings in federal court, because of constitutional issues involved. In every respect, it strikes me as just like a death penalty case.

The fact that this is about “medical care” instead of “crime and punishment” is relevant to my argument — how?

Logical argument rather than insults, please.

My realist take on shelley is the broad state action existed because what people were trying to use the courts to enforce was so repugnant that we did not want to allow private parties to make these contracts, or to even be able to enforce them.

Here you may disagree with what is going on, but the moral issues of guardianship and vegetative care and the withdrawl of sustenance have been pretty well worked out.

“Plenty. If the Boy Scouts want to exclude gay Scoutmasters, they don’t need to go to court to do that.”

I think the guy could get himself into court, or sued, somehow.