Posted by Orin Kerr:
Congressional Intent and the Schiavo Case:
[1]Hugh Hewitt comments on the [2]Eleventh Circuit decision declining
to order the feeding tube restored in the Terri Schiavo case pending
trial:
Judicial contempt for the coordinate branches on this scale is
simply staggering. Anyone defending this morning's majority or
yesterday's ruling has to defend this disregard of Congressional
action.
Hewitt sees the ruling as a "disregard of Congressional action"
because of statements made by proponents of the bill such as [3]this
statement by Tom DeLay:
"We are confident this compromise will restore nutrition and
hydration to Mrs. Schiavo as long as that appeal endures," DeLay
said. "Obviously, the judge will have to put the feeding tube back
in or she could die before the case is heard."
Hewitt offered [4]a similar take on yesterday's district court
decision:
[The] court simply ignores the obvious intent of an overwhelming
majority of the Congress and the agreement of the president. Once
again we have on display a judiciary that has grown contemptuous of
the directly elected branches. When the Senate returns, the clash
over judges will commence again, and proponents of nominees who
understand that it is the role of judges to apply the law as
intended by Congress will have another powerful example of why such
nominees are so needed on the bench.
I recognize that the Schiavo case is an emotional topic, but I'm not
sure I follow the basis of Hugh's criticism. The foundational premise
of statutory interpretation is that the role of the judiciary is to
obey the text of Congressional enactments, not to watch press
conferences and get a sense of what the proponents of legislation
actually want. The judiciary shows contempt of the directly elected
branches by ignoring the text of the laws they pass, not by following
that text. What am I missing?
I have enabled comments. As always, civil, respectful, and on-topic
comments only.
References
1. http://www.hughhewitt.com/#postid1480
2. file://localhost/var/www/powerblogs/volokh/posts/1111600682.html
3.
http://seattletimes.nwsource.com/html/nationworld/2002213745_schiavo20.html
4. http://www.hughhewitt.com/#postid1473
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