(The Return of) Ignatz, by Sam Heldman

Thursday, March 31, 2005

feelings about constitutional law
The newspapers are abuzz about the fact that Eleventh Circuit Judge Birch -- appointed by the first Pres. Bush -- wrote an opinion (for himself alone) in the Schiavo matter, saying that the Schiavo-specific law was unconstitutional. He really laid into them, "them" being the Congress and President, saying that the statute went against the very basic priniciples of our constitutional democracy. You can get the opinion from here.

What's interesting to me, the more I think about it, is that Judge Birch's view of the unconstitutionality of the law was so different from mine. His view was all about separation of powers, and (not that I necessarily think that there's anything wrong with this) was more about the rights of courts than about the rights of individuals. Now, I understand that he might say that preserving the rights of courts is a way to preserve the rights of individuals, and he would be right. But if I were writing an opinion asserting that the Schiavo law was unconstitutional -- and I probably, but not certainly, would have done so if I were in his shoes -- I would have talked about Equal Protection, the rights of individuals, as much as about separation of powers. The Congress enacted a law creating the right to bring a lawsuit against a handful of people -- Michael Schiavo, and the hospice, and maybe a few others. Other than the carefully created media- and political-circus, there is no rational basis to single them out, out of all other people and institutions who are involved in this sort of dispute every week.

Now maybe Judge Birch (whom I respect a lot, by the way, even though his views often differ from mine) knows some reason I don't, as to why precedent would have foreclosed such an Equal Protection argument. But I think that the argument would have been at least as strong as his separation of powers argument, and I'm very surprised that he didn't invoke it as well. Whether this marks some greater difference between liberal visions of constitutional law and conservative ones is an interesting question; my tentative answer is, "not as much as you might think."

posted by sam 9:07 AM 4 comments


Interesting post, Sam. My sense from reading Judge Birch's concurrence was that he didn't get to any substantive grounds, not necessarily because of any doctrinal preferences, but because he found that PL 109-3's interference with the execution of the judicial function (under sec. 2) was so integral to the terms of its grant of jurisdiction (under sec. 1) that it rendered the entire law unconstitutional. IOW, from an analytical perspective, Judge Birch believed the Court lacked jurisdiction even to get to consideration of any of PL 109-3's other potentially unconstitutional effects.

That doesn't say anything, of course, about whether Judge Birch would or wouldn't have agreed with you on Equal Protection had he assumed jurisdiction -- as the rest of the majority did -- to get to consideration of the effects of the law.

My gut sense, also, is that there was a more broadly strategic purpose to the opinion Judge Birch wrote. I think he believes, as many of us do, that this law was the trial run for a theocratic offensive in Congress against the judicial function, of jurisdiction-stripping, procedure-meddling, and whatever else they may get away with. This opinion was his message to the corporate side of the Republican Party not to support the theocrats' crusade down that road.

By Anonymous Steady Eddie, at 12:20 PM  

"I think he believes, as many of us do, that this law was the trial run for a theocratic offensive in Congress against the judicial function, of jurisdiction-stripping, procedure-meddling, and whatever else they may get away with."

First up, Ninth Circuit splitting.

By Anonymous kris, at 3:16 PM  

I like the idea of the difference between liberal and consevative views of constitutional law. It might tie into the tendency to try to justify what a judge feels is wrong or feels is right.

A reason becomes more compelling when it supports the result you feel is right. Equal protection is the best reason when you feel that is the biggest wrong being perpetrated. For some judges, and this is the genius of separation of powers, even when they agree with the spirit and result of efforts by other branches, the encrochment on their own sphere is the biggest wrong.

that always struck me about the city of Boerne case.

By Anonymous Anonymous, at 5:14 PM  

Yeah, City of Boerne. It sounds like Steady Eddie's idea about strategic purpose might have something to it. But I don't know enough about how things roll, or about that judge, for me to have an opinion that amounts to a hill of beans about whether Eddie's right about the particular message that was being sent.

I'm just a novice, but my feeling was that, this is the kind of opinion, which I've seen or heard of a few times before, where the judge steps forward to defend the judiciary's pissing-ground: he's telling all the other courts, "Take this stuff seriously. These people are posing a threat to the courts."

By Blogger Swan, at 10:00 PM  

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