Posted by Orin Kerr:
Eleventh Circuit Affirms Schiavo:
The 2-1 opinion is [1]here, via How Appealing. The majority opinion
ends with a bit of a lesson to the American public (and Congress)
about the rule of law:
There is no denying the absolute tragedy that has befallen Mrs.
Schiavo. We all have our own family, our own loved ones, and our
own children. However, we are called upon to make a collective,
objective decision concerning a question of law. In the end, and no
matter how much we wish Mrs. Schiavo had never suffered such a
horrible accident, we are a nation of laws, and if we are to
continue to be so, the pre-existing and well-established federal
law governing injunctions as well as Pub. L. No. 109-3 must be
applied to her case. While the position of our dissenting colleague
has emotional appeal, we as judges must decide this case on the
law.
Judge Wilson dissented, essentially on equitable grounds: Schiavo
will die absent immediate relief, he reasoned, and Congress seems to
have wanted the federal courts to keep her alive until there was a
more substantial hearing. Notably, however, Judge Wilson avoided
explaining why the case presented the required substantial likelihood
of success on the merits. On this point, he offered the conclusory
view that "[t]he merits of Plaintiffs� substantial claims warrant a
more complete review. I do not mean to suggest that Plaintiffs will
definitely prevail on the merits, but merely that she has presented a
sufficient case on the merits."
The case will now go up to the Supreme Court, I assume. The chance
that the Supreme Court will agree to hear the case or otherwise
intervene is very close to zero.
References
1. http://legalaffairs.org/howappealing/200511556.pdf
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