Judicial Tyranny?

Dana Milbank has an interesting piece in the Washington Post today pointing out that the feud over Terry Schiavo is but a precursor to the upcoming battles that will take place over judicial confirmations. In fact, I think the most significant consequence of this case is going to be a conservative campaign against "judicial tyranny." Here's Tom Delay from his press conference today - "We will look at an arrogant, out of control, unaccountable judiciary that thumbed their nose at Congress and the President." Who's "we" and what will it mean to "look at" the judiciary? Which judges were arrogant, out of control and unaccountable? Since there was virtual consensus among judges - whether liberal or conservative, state or federal - it's hard to believe they are out of control (arrogant maybe, but coming from Delay that's a bit like the pot calling the kettle...). Are judges unaccountable? This is a serious charge and it raises some complicated issues.

The judge who has taken the brunt of the conservatives' ire in this case is Florida Circuit Judge George Greer. He's the judge that has been most involved in the Schiavo case and also the one who ordered the feeding tube removed and ignored Congress's subpoena for Terry Schiavo. But in what way did Judge Greer act tyrannically? It can't be because he doesn't have to answer to the voters - judges in Florida (with the exception of the Florida Supreme Court), including Judge Greer, are elected! Besides, if that's the only reason, then the unelected judiciary - including all federal judges - act tyrannically every day.

It must, then, be that he override an elected branch of government. If so, the Supreme Court acted tyrannically in Brown v. Board of Education(and, in fact, many conservatives at the time argued that they had) and in hundreds of other cases where they ruled legislative actions unconstitutional. Overruling the other branches is the judiciary's prerogative under our constitutional system of checks and balances. Furthermore, the principle of separation of powers requires an independent judiciary and gives the courts the responsibility for interpreting the law.

But that's apparently not what Pennsylvania's own Sen. Rick Santorum thinks. When U.S. District Court James Whittemore refused to hear the Schiavo case de novo following the passage of the Schiavo bill in Congress, Santorum argued,

"You have judicial tyranny here... Congress passed a law that said that you had to look at this case. He simply thumbed his nose at Congress."

"What the statute that [Whittemore] was dealing with said was that he shall hold a trial de novo," the Pennsylvania Republican explained. "That means he has to hold a new trial. That's what the statute said."

"What he's saying is, 'I don't have to hold a new trial because I've already determined that her rights have been protected,'" Santorum said.

"That's nice for him to say that. But that's not what Congress told him to do," he added. "Judges should obey the law. And this judge - in my mind - simply ignored the law."

But if judges are simply supposed to "obey the law" as written by Congress, what is their purpose? What is their role in a system of separated powers? In fact, it is Congress that overstepped its bounds, as Judge Birch argued in his concurring opinion in the 11th Circuit Court's decision yesterday not to take the case.

Section 1 of Pub. L. 109-3 [the Schiavo law]—which states that the United States District Court for the Middle District of Florida shall have jurisdiction to hear a suit regarding alleged violations of rights held by Mrs. Schiavo “under the Constitution or laws of the United States”—is not facially unconstitutional. If the Act only provided for jurisdiction consistent with Article III and 28 U.S.C. § 1331, the Act would not be in violation of the principles of separation of powers. The Act, however, goes further. Section 2 of the Act provides that the district court: (1) shall engage in “de novo” review of Mrs. Schiavo’s constitutional and federal claims; (2) shall not consider whether these claims were previously “raised, considered, or decided in State court proceedings”; (3) shall not engage in “abstention in favor of State court proceedings”; and (4) shall not decide the case on the basis of “whether remedies available in the State courts have been exhausted.” Pub. L. 109-3, § 2. Because these provisions constitute legislative dictation of how a federal court should exercise its judicial functions (known as a “rule of decision”), the Act invades the province of the judiciary and violates the separation of powers principle.

It IS offensive to democratic sensibilities to allow unelected judges to strike down acts of the elected branch(es) of government. But making them more accountable to "the people" (read: the majority) is problematic too. Ultimately, conservatives aren't really upset with tyranny - just with decisions they disagree with. The campaign against an independent judiciary seeks to do something radical to our constitutional system. We'd better think long and hard before letting it happen.