by Bert Brandenburg, Executive Director, Justice at Stake*
Terry Schiavo's tragedy has triggered a national debate, including discussion of the propriety of a new law sending her case into federal court for additional review. What's not so well known is that the For the Relief of the Parents of Theresa Marie Schiavo Act is just the latest in a recent string of Congressional "court-stripping" attacks on our courts.
What is court-stripping? It's an effort to take jurisdiction or discretion away from a court or a particular judge, often to deny a particular group access to the courts. Politicians increasingly use court-stripping to reverse decisions, punish judges, or even avoid future rulings they may not like. Sometimes they seek to eliminate jurisdiction altogether. In other instances, they shuffle lawsuits between state and federal courts to achieve political ends.
Recent years have seen an explosion in Congressional efforts to undermine the role of the courts.
- The Pledge Protection Act adopted by the U.S. House in 2004 would have outlawed the ability of courts to hear challenges to the Pledge of Allegiance.
- The Constitution Restoration Act of 2004 would have denied federal courts the power to hear suits involving the government's promotion of religion by removing court jurisdiction over challenges of a governmental official's "acknowledgment of God as the sovereign source of law, liberty, or government."
- Recent proposals to amend the U.S. Constitution to define marriage in a narrow fashion would deny state courts the ability to interpret their own state constitutions; the Defense of Marriage Amendment of 2005 would actually write court-stripping into the Constitution.
- The Real ID Act of 2005 - a sweeping piece of immigration reform - would bar courts from reviewing the Secretary of Homeland Security's unilateral waiver of any law that may interfere with the building of border fences, and deny many victims of overseas persecution a day in an American court to plead for asylum.
- The 2003 "Feeney Amendment" sharply limited the ability of federal judges to issue sentences below federal guidelines in many criminal cases. The U.S. Supreme Court effectively nullified this provision with its decision in January 2005 in U.S. v. Booker and U.S. v. Fanfan.
- The USA Patriot Act of 2001 reduced judicial discretion to review law enforcement efforts to detain suspects, monitor private Internet communications, obtain certain personal records and share wiretaps with intelligence agencies.
- The Class Action Reform Act of 2005 stripped state courts of their historic right to settle class action suits, and moved the suits into federal courts.
Proponents of court-stripping frequently seek to whip up populist outrage against the courts. House Majority Leader Tom DeLay says that "judges need to be intimidated" and that Congress should "take no prisoners" in dealing with the courts. Other efforts are stealthier: the Feeney Amendment was slipped into a popular anti-kidnapping measure without a single hearing or consulting a single judge, triggering strong complaints from Chief Justice Rehnquist.
Backers of the new law did not worry that they were wresting jurisdiction over Mrs. Schiavo's case from Florida's judiciary, where 19 judges in six courts have been reviewing it for more than 15 years. "The Congress will pursue this, if we have to hold him in contempt of Congress," Congressman DeLay said last week. "We will do everything to enforce the power and authority of the Congress and no little judge sitting in a state district court in Florida is going to usurp the authority of Congress."
But other conservatives are crying foul, saying that the law casts aside their federalist principles. "The bill itself does not create any new substantive rights," said Harvard Professor Charles Fried, who was Solicitor General during the Reagan Administration. "What they gain is delay and publicity, and a terrible, disgraceful interference in what is a personal tragedy."
Many Americans agree. In an ABC News poll, 70 percent of Americans said that it is "inappropriate for Congress to get involved" in the case, including 58 percent who say they feel "strongly" opposed.
On the other hand, it will be interesting to see if the Schiavo legislation will prove to be a bellwether of yet more attacks on the power of courts. The new world of cable, blogs, and talk radio make it easier than ever to cobble together instant political pressure campaigns-and courts will always be popular whipping boys, since judges rarely fight back in the political arena. Maybe that's why Mrs. Schiavo's tragedy was cited as a "great political issue" in talking points circulating among Senate Republicans. "One thing that God brought to us is Terri Schiavo," Congressman DeLay told a group of Christian conservatives last week, "to help elevate the visibility of what is going on in America."
*Justice at Stake is "a national partnership working to keep courts fair and impartial."
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