Eleventh Circuit decision refusing on a 2-1 vote to overturn the district court's denial of a TRO.
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by Michael Froomkin
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
University of Miami School of Law
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Having run through the full series of state courts and rapidly progressing through the federal it is almost certain that this case will be appealed to the Supreme Court again. But with both of the affirming judges and even the dissenting judge saying that the case has little likelihood of proceeding based on the merits of the case what do you think the odds are that the Supreme Court will hear the case?
There are significant constitutional questions to the legislation which transferred the case into the federal arena but what would be the constitutional questions regarding the case itself? I have read the original complaint by the Schindler family and it seems like a flailing child so desperate to hit anything that all it does is swing its fists in the air and hope.
The question of whether it violates Terri Schiavo’s religous principles seems as difficult to determine as whether she would wish to be kept alive: Religous principles are a personal matter and often shared only with close family and friends if at all, therefore it seems that anything dealing with her religous beliefs is suspect. (While I consider myself a good catholic many other good catholics would disagree with me) How would that be determined at all?
The 8th Amendment claim would seem to imply an incarceration other than in her own body and mind. (Though I may not understand this claim)
The 14th Amendment claim seems to be the only one with even a hint of plausibility to it.
So many charges and accusations of constitutional violations are flying around that it’s hard not to get hit in the face with them in every article or blog post but when it comes down to the fine points of Constitutional Law, what is there to decide on?
Thanks.
(PS I am neither lawyer, nor law student, nor aficianado, just curious)
“The question of whether it violates Terri Schiavo’s religous principles seems as difficult to determine as whether she would wish to be kept alive: Religous principles are a personal matter and often shared only with close family and friends if at all, therefore it seems that anything dealing with her religous beliefs is suspect. (While I consider myself a good catholic many other good catholics would disagree with me) How would that be determined at all?”
The First Amdt claim is actually the easiest to dispose of, as private actors cannot violate your free exercise of religion right – the state must do so. The husband and the hospice are both private actors. Greer, the third named defendant, is a judge, and is a state actor. However, I think that judges are granted deference where they are performing only ministerial functions and where their actions don’t rise to a ‘malicious’ standard. Petitioners’ allegation that Greer ‘advocated’ doesn’t come near that standard. Also, Free Exercise complaints are only valid where the law in question targets the activity in question. Here, the law is one of general applicability.
Thanks Scott.
Anyone want to take a crack at the other two?
Bradley