Ideal System...Schiavo as an illustration

[elwoodblues]

In a case such as the Schiavo case, which part of our government should be last to act? Which branch of government should be the final arbiter of what happens?

For those who think the president (or governor) should step in...is that just for 1 case with particularly difficult facts, or is that in all cases?

Should we have the legislature essentially overruling court decisions...again, just for this case or in all cases?

The Schiavo case is highlighting a few important issues for us to consider - the life and death issues are the most obvious. However, it also highlights what I consider to be a bastardization of the system (or at least an attempted bastardization of the system.)

[BCPVP]

I think the judicial system should decide, but on the condition that they interpret the law, which is their job. There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level.

[elwoodblues]

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There was a law passed that asked that this case be given de novo review and that didn't happen.

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Yes, but that isn't the procedure for the relief sought by the parents in the federal action(Temporary Injunction.) The procedure for a temporary injunction has to be truncated, because by its very nature actions seeking temporary relief are time sensitive and a de novo review is not possible.

[KellyRae]

There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level

Exactly right.

[elwoodblues]

[ QUOTE ]
There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level

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I don't want to get overly bogged down in an argument about the process, but let me just add to this.

The federal law specifically applicable to Terri was silent as to what the standard for a Temporary Injunction would be. The general standard for a Temporary Injunction is, partly, that the moving party has to establish a substantial likelihood of success on the merits of the case. Basically, this means that the court will temporarily require a party to do something so as to avoid irreparable harm where the moving party will likely win anyway.

The Schindler's moved for a Temporary Injunction. The court followed the law by applying the Temporary Injunction standards.

The De Novo review standard only comes into play when there is a full trial on the merits, not in a hearing on temporary relief.

[KellyRae]

"The De Novo review standard only comes into play when there is a full trial on the merits, not in a hearing on temporary relief."

Precisely the reason why the standard applied with respect to the TRO is wrong. No way a final non-appealable resolution of the case comes about prior to Terry's having already died.

[elwoodblues]

Only an activist court would change existing law for one case. If the legislature wanted to do that, they could have. The existing law for a temporary injunction is that you have to prove a substantial likelihood of success on the merits.

[LaggyLou]

[ QUOTE ]
There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level.

[/ QUOTE ]


hahahahahahahahahahahaha. Good one.

[El Barto]

Congress makes the laws

The executive enforces the laws

The courts interpret the laws

I see no conflict in the Schiavo case. If Congress doesn't like the court's interpretation they can revise and create new laws. This has been done many many times, and as the democratically elected body, this is good and right. The check on Congress is the difficulty of getting a majority together to pass a law.

The courts should try to interpret honestly and objectively, rather than try to make their own laws. Many courts fail in this, and this is a problem that needs to be corrected.

The decision of what the law should be should belong to the political branches. The courts should only clarify the truly fuzzy areas.

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The courts should try to interpret honestly and objectively, rather than try to make their own laws. Many courts fail in this, and this is a problem that needs to be corrected.

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The blanket, ridiculous critical statements about the judicial system seem keep proliferating.

My friend, your statement is not accurate. "Many courts" do not fail to enforce the law as written. You will find that it is the most unusual circumstance that would have a court doing so, and that court would be reversed on appeal, every time.

The problem is not the courts. It is with a Congress or a legislature that, for political purposes, passes vague laws. They then throw it into the laps of the courts to interpret the law and try to figure out what the legislature intended. In this manner, the legislature avoids taking an overtly unpopular opinion, and can point the finger at the courts when they necessarily reach the unpopular conclusion.

Don't fault the courts. Fault your lawmakers for not passing clear bills.

I don't fault you or the others for such statements, however. The genesis is the cabal that loves to scream about "activist judges" and blames the judicial system every time there is a ruling that they don't like. It's all a fiction. If you don't like a ruling, criticize the rationale, but don't criticize the courts. The rule of law requires that our elected officials foster respect for the judicial process. Unfortunately, some of them don't do so, and that's a dangerous thing.