Now that the Schiavo bill has become law, Jack Balkin’s views are worth another review. (Yes, this is off-topic, but, unlike Jacko’s trial, Congress’ actions really do merit consideration by us all.)
In The Schiavo controversy, the pro-life movement, judicial restraint, and federalism, Balkin makes this point:
I think the proposed bill is unwise, but that reflects my priors on the underlying policy question. My point is that Congressional Republican leaders seem to have lost any concern about “activist” federal judges interfering with the State of Florida’s legal system.
It is not surprising that Congressional Republicans are fair weather federalists when it comes to these issues, and that they want the federal courts to get involved in right to die cases like Schiavo’s. Few national politicians are seriously interested in federalism or judicial restraint when this would interfere with something they really care about. The Schiavo controversy demonstrates, I think, that pro-life values are likely to trump federalism values and concerns about an activist judiciary when the chips are down; they will even trump them when politicians think they can gain something from grandstanding, which appears to be what is going on here. Cultural conservatives may talk loudly about decentralization and rail against activist judges, but, like just like most liberals, they believe that activist federal judges who decide things they way they like aren’t activist at all. They are judges who uphold important rights.
Finally, the Congressional Republicans’ moves also suggest that if Roe v. Wade were overturned, the matter would not be left to the states, as so many pro-life politicians have advocated in the past, but would quickly become a fight over federal legislation outlawing abortion nationwide. Don’t say I didn’t warn you.
For a useful timeline on the Schiavo case, with extensive online references, see The Terri Schiavo Information Page. Draw your own conclusions.
Later: Reuters News Wire – Poll: Most Think Congress Wrong on Schiavo Case [pdf]; Reuters – Schiavo Case Exposes Political Divide in U.S. [pdf]; Slate – Who’s paying for her care, how long can she live without food, and what’s with the bill written just for her?; Salon – When public opinion doesn’t matter; Scott Rosenberg – Terry Schiavo, political football; this screencap (@1:21) from this CBS News report shows a brain scan comparison [via Mercury Rising’s A Tale Of Two Scans].
Later: Dahlia Lithwick’s excellent, if exasperated, Activist Legislators; Judge Whittemore’s March 22 denial of injunctive relief
Even later: GYWO chimes in
March 23 — 11th Circuit Denies request; FindLaw coverage