Patterico's Pontifications


Schiavo Now Very Likely to Die Within a Week

Filed under: Court Decisions,Schiavo — Patterico @ 6:24 am

By a 2-1 vote, the 11th Circuit has affirmed the decision not to reinsert Terri Schiavo’s feeding tube. The essence of the dissenting judge’s opinion: “Congress intended for this case to be reviewed with a fresh set of eyes.” Clearly, it was not. But I think that this is the end.

10 Responses to “Schiavo Now Very Likely to Die Within a Week”

  1. Judiciary closes ranks
    It seems my schaedenfreude was premature. Feeding Tube Reinsertion Denied Again:In a 2-1 ruling early Wednesday, a panel of the 11th Circuit Court of Appeals in Atlanta said the parents “failed to demonstrate a substantial case on the merits of…

    Carpe Bonum (3016bf)

  2. …and what happened to that order for a de novo hearing? Or am I mistaken about the meaning of that term – start from scratch including discovery?

    Claire (222d9a)

  3. “and what happened to that order for a de novo hearing? ”

    I don’t think congress ordered a de novo hearing. They provided jurisdiction for one. They also didn’t change the substantive standard for the granting of a temporary injunction.

    actus (ebc508)

  4. This case has taken on such biblical proportions that I fully expect her to die on Good Friday while the Supreme Court washes their hands of it. After that, all reasonable discussion of the matter will vanish and I have no idea how, as a society, we will be able to address this issue.

    Justene (af1407)

  5. Actus sez:

    I don’t think congress ordered a de novo hearing.

    The law sez:

    In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.

    If that isn’t an order for a de novo hearing, what is?

    Xrlq (ffb240)

  6. De novo doesn’t mean re-do necessarily.

    In an appeals court, even with de novo review the court is bound to the record below, and cannot engage in additional fact-finding.

    That is slightly different on collateral review like we have here, but no, it doesn’t mean “start from scratch” necessarily.

    The Angry Clam (c96486)

  7. “If that isn’t an order for a de novo hearing, what is?”

    You’re right. They shall hear de novo the claims that are brought.

    actus (ebc508)

  8. Where there is life, there is hope.

    Never give up.

    Proverbs (8ff521)

  9. I think the district court got it right, though I definitely don’t know enough about TROs to know for sure. But as for Congress’s intent, it is irrelevant; they may not constitutionally order the judiciary to use its equitable power in a certain way. In other words, they may not direct the court on how to decide a case. Apart from constitutional law, this also seems like the right policy decision–we don’t want legislatures meddling in courts’ business.

    The intent of Congress to do something beyond its power to do directly (or beyond political feasibility) does not bind a court to follow it when it believes it may dispose of the case with adequate care, which it appears the district court did.

    Everyone is free to disagree with the outcome; it is certainly a difficult moral question. But I think the federal process provided was sound.

    Matto Ichiban (9bb02f)

  10. Clam,

    The law doesn’t say that “review” will be de novo. It says the court will “determine” the claims de novo.

    As I said last night, though, my impression is that the lawyers screwed up by bringing claims that were narrow and procedural in scope, essentially reducing the complaint to little more than collateral “review.”

    So, I’m not sure I blame the courts. At the same time, I am disappointed that even the limited claims presented do not appear to have been treated that seriously. Can anyone imagine a district judge passing on a federal habeas claim of a death row prisoner in 24 hours, and refusing to stay an execution because that 24-hour review didn’t look likely to succeed?

    Usually, we’d be thrilled to see a decision from the district court in under a year — which, I’ll bet, almost never happens.

    Patterico (08c813)

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