I was listening to the Sean Hannity show on my way into the office this afternoon. He was discussing the Florida District Court’s ruling denying the plaintiffs’ request for a temporary restraining order under the federal statute passed by Congress (the “Schiavo Act”). Hannity stated that he believed the court’s opinion did not even reference the Schiavo Act. He was hammering the federal court’s decision as symptomatic of the arrogance of the judiciary. Senator Rick Santorum came on the Hannity show and claimed the Schiavo Act required the federal court to order the reinsertion of nutrition and hydration tubes pending a full hearing on the merits. Santorum also decried the ruling as an abuse of judicial power. This seems to be the Christian Right’s theme: a National Right to Life Committee spokesman referred to the federal court’s decision as a “gross abuse of judicial power”; Christian Defense Coalition Director Pat Mahoney, quoted in a Focus on the Family article, attributed the federal court’s decision to “an arrogant and activist federal judiciary.”
Unfortunately, all of these comments about judicial activism are wrong.
First, the federal court refers repeatedly to the Schiavo Act in its opinion; Hannity shouldn’t have made any comments about the opinion before he had read it.
Moreover, more significantly, although the Act requires the federal court to hold a new trial, it does not require the court to grant a temporary restraining order. The opinion released today was an order dentying a temporary restraining order. A temporary restraining order is an injunction issued before holding a full trial on the merits. The court’s ruling today is not a decision on the merits, nor is it a dismissal of the plaintiffs’ case without a full trial. It was made according to standards for temporary restraining orders that are applied almost uniformly in federal courts throughout the country (I’m quite familiar with TRO procedures, as I litigated many intellectual property cases that began with requests for preliminary injunctive relief). The case is still pending on the court’s trial docket.
Of course, there might be good reasons to argue that the court should have granted a temporary restraining order in this case. A request for a TRO requires the court to balance the relative harms to the parties if the order is or is not granted. Here, there seems to be no significant harm to anyone in granting a TRO, and dire harm to Terry Schiavo absent a TRO if it ultimately is determined in a full trial on the merits that she is not in a PVS. But, there simply is no basis for arguing that the federal Judge ignored the statute by denying the request for a TRO. The real problem is that the drafters of the statute failed to require temporary restraints or at least to require an immediate full trial on the merits.
This particular ruling, then, is not symptomatic of judicial activism. You may disagree with the Judge’s conclusions, but he appears to be following the statute Congress (poorly) drafted.