Schiavo Without Tears
Fifteen months after the fact, a law professor at Washington University School of Law is chiming in with his view of the legal machinations surrounding the sad demise of Terri Schiavo, the comatose woman who died amid great controversy last Spring after her feeding tube was removed. The paper by Samuel R. Bagenstos is getting a little bit of notoriety online because it concludes, without the usual conservative vim, that the federal courts "rushed the case, and in so doing failed to provide meaningful consideration" of the claims of Schiavo's parents that their daughter's rights were being violated under the Americans with Disabilities Act.
Never mind the fact that courts had been wrangling over Schiavo for years and years before the final acts unfolded. The problem with the professor's paper, and his argument, is that he then determines that Schiavo probably didn't have any such rights under the ADA anyway (a "close" case, he allows himself to say, although the case law suggests otherwise). It was the procedure, the speedy appeals, the quick resolution by the courts after Congress got involved in the case that left the bad taste in Bagenstos' mouth
Professor Bagenstos's major complaint is that the federal courts didn't pay enough attention to Congress' extraordinary (and unconstitutional) special-interest legislation that gave Schiavo's parents, and they alone, rights in federal court that no other people before or since have received. And that's like saying shame on the judiciary for not going as temporarily insane as Republican leaders in Congress did in their efforts to take sides in a family law matter.
"Federal judges might understandably have been put off by the way the statute singled out a particular case, by the lack of meaningful congressional deliberqation in the highly charged atmosphere in which the statute was adopted, and by the attempts by many politicians to use the courts (as weapons or targets) in a political battle, Professor Bagenstos says no small amount of understatement, but they still should have bent over backward to obey Congress and pretend that the Florida state courts hadn't evaluated the case over and over again for years.
I covered the end of the Schiavo case and thought that it was the federal judiciary's finest hour in a long, long time. Go ahead and read the professor's paper for yourself and then let me know what you think.
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