Saturday, March 19, 2005

Principles vs Outcomes, Activist Judges and Terri Schiavo

The case of Terri Schiavo, whose feeding tube has finally been removed (again) yesterday, underscores how many people truly don't care about the rule of law. Sure, it's very popular these days to complain about "activist judges" who "defy the rule of law" and "substitute their own personal preferences" to "legislate from the bench". And it's occasionally true that that happens. But more often than not, these charges are raised against judges whenever people are unhappy about the outcome, regardless of the principles that may have been applied to reach the outcome. In recent discussions about the San Francisco marriages court ruling, these "activist" charges are flying everywhere, to which I reply "have you read Judge Kramer's opinion?" The answer is inevitably "no", because the people crying "activist judge" really have no interest in how Judge Kramer arrived at his conclusion. It's enough for them that his conclusion is not the outcome they wanted to see, so that's enough to make him an "activist", and his opinion an imperious imposition of personal preference. Yet for anyone who cares about principles, and who bothers to actually read the judge's opinion, it is thoroughly well-reasoned and not the least bit arbitrary. The judge applied the well-established standards of jurisprudence, and by following their logic (not his own preferences), came to his inescapable conclusion. In fact, the conclusion may well not have been his personal preference (he happens to be Catholic and Republican), but the man merely did his job the way he's supposed to, applying the law and not making it up.

Return now to Terri Schiavo, who has been forcibly precluded from a peaceful death against her own will (as best as it can be legally ascertained) for 15 years, and let's consider the law as it applies to this case. Applicable law allows life-resuscitating or life-sustaining medical treatment (including forced feeding) to be withheld, if it is the will of a person with no reasonable hope of recovery to be allowed to die. If the law didn't allow this, Michael Schiavo wouldn't have had a legal leg to stand on, and there would be no controversy. But the law does allow this. The question then turns to how we know the patient's will, since she is not capable of expressing it, and did not leave written instructions (a living will or heathcare directive). The law is clear that, in such circumstances, next of kin can testify as to her intentions, and any conflicts presume for her spouse over her parents should they disagree. Again, if this were not the law, Michael Schiavo wouldn't have had a legal leg to stand on, and there would be no controversy. But as this case makes bare, those opponents of allowing Terry Schiavo to die are really not interested in the principles and rule of law, they are only interested in a particular outcome, and are willing to sacrifice principle for their desired outcome. They look to the court to prevent the removal of her feeding tube (despite the fact that such removal is completely legal in such circumstances), or to give custody to her parents over her husband (despite clear law to the contrary). The sanctity of marriage (and its traditional legal preference even over parents) apparently can be tossed out when one doesn't like the decisions made by the spouse. (Can you imagine if it were Michelle Schiavo, a same-sex domestic partner instead of a traditional spouse?) The libertarian value of minimal federal interference in personal decisions also seems expendable. In short, what they want is for the judge to defy the rule of law, to substitute personal preferences for the law, and to re-write the law rather than interpret it.


KipEsquire said...

I don't mean to be snide, but do you really think death by dehydration is "peaceful"? I'm not sure you've fully researched the issue.

Anonymous said...

I believe you're making the faulty assumption that this husband has somehow lived up to his marriage vow.

Were Florida to have common law marriage, Michael Schiavo would be guilty of bigamy as he's lived with his extramarital girlfriend for around 10 years and fathered 2 children. This is also, as far as I can tell, his second girlfriend since Terri went into the hospital.

What ever happened to "through sickness and health" ?

Michael clearly has not been a faithful husband, and thus the parents should have a very strong case for being granted next of kin.

The financial settlement of $1.2mil promised to go toward Terri's treatment (of which at least $400k in attorney fees has been spent trying to end her life) also generates a conflict of interest.