The Courts Push Back

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Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

When the White House declares war overseas the judiciary backs off. When Congress passes a budget the judiciary backs off. So why is it so hard for people to understand that when judges interpret the law the other two branches ought to back off? That's not just a good idea backed by common sense -- it's the law, a part of the Constitution that even big fans of the "original intent" doctrine cannot deny.

On its most fundamental level, stripped of all the passion and emotion and desperation, the Terri Schiavo saga this week was a story about the push-and-pull between the branches, on both the federal and state level. The executive and legislative branches tried to hijack the courts to achieve a particular political result and the courts fought back and won, as they should have, as they must have if we are to continue as a society ruled by law and not political fiat.

Congress and the White House and the politicians in Florida illegitimately pushed the judiciary far beyond the point of reason and the judges rightly and justly pushed back. From Pinellas County, Florida, to Tampa to Atlanta to Washington, good for all of them.

The week's battle was ugly, it was disappointing, it was a growing sign of the "legalization" of politics or, if you wish, the "politicalization" of the law. But in the end, it was another example that the system we have in place works even under the most arduous stress. I know that many of the politicians who supported the power grab on behalf of the parents of Terri Schiavo now will crucify "activist" judges for failing to order her feeding tube to be reconnected. When they do, and you hear them, just remember that it was the courts that held the line in this sad case; that it was the judiciary that kept intact the law.

Activism? Try pinning it on a group of lawmakers who put this case, this issue and the Schindlers above the notion of separation of powers and co-equal branches. Try pinning it on a White House that enabled and encouraged lawmakers in this effort to the point where federal lawyers were arguing in federal court for the type of expanded jurisdiction that has been an anathema to conservative jurisprudence for as long as there has been conservative jurisprudence. Judging from the polls that have come out over the past week, a vast majority of Americans are, indeed, seeing the forest for the trees; people simply don't think it was the necessary and proper business of the feds to load the dice in favor of Terri Schiavo's parents and against her husband.

The judicial system, in Florida and in Washington, fully and fairly considered the claims of Michael Schiavo and Bob and Mary Schindler, the parents of Terri Schiavo. The Florida courts ruled for Michael Schiavo, time and again, over the course of many years. That should have been the end of it and, if it were, it would have meant that all of the parties in the case had received no more and no less constitutional due process than anyone else in a similar situation. It would have meant that Terri Schiavo, and Michael Schiavo, and the Schindlers had received everything the law owes them.

But it didn't end there. Congress ordered an unprecedented federal review. So the federal courts, deferring as much as they must to their co-equal branch, gave the Schindlers that rare review. Three separate courts -- in Tampa, Atlanta and Washington -- looked at the matter and determined, with varying degrees of explanation, that if Terri Schiavo (and, by extension, the Schindlers) did not receive fair due process rights no one ever has. This should have been the end of the matter and, if it were, it would have meant that all of the litigants in the case had received more rights than you or me ever could hope for. But it didn't even end there.

What makes this case so unusual, so startling even, is the length and extent to which officials in the other two branches were willing to go to try to circumnavigate the dictates of the law on behalf of a single individual. Capitol Hill's tailor-made legislation on Monday was just the most visible example of this special treatment. The President's decision to interrupt his vacation was the most curious example. Governor Bush's attempt to take custody of Terri Schiavo on the flimsiest of abuse allegations, and upon the conclusion of a doctor who did not evaluate her, was the most serious.

Astonishingly, all of these actions took place after the courts had reached their final conclusions over matters entirely within the jurisdiction of the courts to decide. They all took place after the other two branches should have recognized that judges and not politicians get to decide individual cases.

That's not to say that it is unusual for an executive or legislative branch to challenge the official actions of the judiciary. We see it all the time on both a federal or state level. It is all part of the interplay between the branches, the natural tension and vital dynamic that is supposed to ensure that no single branch assumes or takes too much power or control of government functions. Congress passes laws that judges interpret. And if those interpretations are not to Congress' liking the lawmakers sometimes can change them again. And once the laws are set the executive must enforce them, fairly and evenly, lest he be hauled back before a judge. It's the political and legal and national equivalent of the cycle of life -- like the cruel world on the Serengeti plains.

But what happened in this case was not that. It was an order of magnitude different from that. How would you like the whole weight of the White House and Congress coming down against you and in favor of your opponent in a lawsuit you had just won? How would you like to have to worry about state officials coming to take custody of you even though a judge had ruled, over and over again, that you were beyond the reach of those officials? How would you like it if the Constitution itself and 200 years of law were changed, in a week, in order to try to deprive you of your rights? You wouldn't. That's why, thanks to the judiciary, the law does not permit these things.

Another aspect of this case that was different, and disturbing, was the lack of public rhetoric about the true and noble nature of the courts and the place of judges as final arbiters of our disputes, large and small. Throughout this long week I kept waiting for federal and state leaders to say the sorts of things we typically hear from government officials during and after controversial cases-- that everyone must respect the courts, that judicial decisions are final, that the rule of law is more important than the results of any particular case. Those statements simply didn't come, or at least didn't come until after the litigation was effectively resolved and it became clear that it was time to concede.

That sends a terrible message to young and old alike about the place of the judiciary in our system of government. It sends a message of disrespect toward judges and the rule of law; a message that final judicial decisions can be mere way stations along the road to a political result. Judges don't have a soapbox in which to compete in this fight for public perception in the court of public opinion. They do not have a bully pulpit and they don't appear on cable television or on talk radio. The can only speak through their rulings. This week, those rulings quietly spoke volumes about what is right about our government, even as all the white noise and hot passion surrounding them spoke loudly about what is wrong with it.
  • David Hancock

    David Hancock is a home page editor for CBSNews.com.

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