Federal Jurisdiction; The Tweezer Method  

This essay is slightly off-topic, and relates to the “other” focus area of my practice, federal civil litigation, not appellate practice. Then again, given the contentiousness of the matter, perhaps I’m only slightly ahead of schedule.  [Update — I’m no longer ahead of schedule; this afternoon, the petitioners appealed this morning’s denial of a preliminary injunction to the Eleventh Circuit.  As of today, it’s an appellate issue.]

Yesterday, the night owls among us got to see a remarkable turn of events as the United States Congress, convening on a Sunday night, spilled over to a (very early) Monday morning vote on special legislation affecting the rights of only one person. I am not aware of any precedent for such a massing of the legislative power of our nation. The president, I have read, flew to Washington from Texas in order to sign the newly minted bill into law, shortly after 1:00 am.

If you’re looking for a comprehensive view of the Schiavo saga, I will point you in the right direction: It’s Matt Conigliaro’s excellent blog, Abstract Appeal . Matt has covered this case for a long time, and to my knowledge, he has done so without taking sides on the awful underlying issue of whether Terry Schiavo should or should not be allowed to die, or be starved to death, depending on your point of view.

You will also find numerous posts on the case on Howard Bashman’s blog, How Appealing . He opined Sunday evening that the (then merely proposed) statute was constitutional, and invited anyone with a differing opinion to write in and correct him. At least one writer did so, mentioning a point on federal standing that Howard acknowledged he hadn’t considered. (A subsequent post quoted an anonymous law professor as agreeing with Howard’s original position.)

I won’t rehash all those arguments, and (like Matt) I won’t take sides on whether Ms. Schiavo’s life support should continue. I have not seen the evidence in the case, and like most lawyers, I recognize the futility of trying to make informed decisions based on newspaper accounts. But the means – to call them extraordinary means is to understate the case dramatically – by which Congress addressed this thorny issue should be of interest to anyone interested in federalism, in separation of powers, in what makes our government run as it should.

Every lawyer who studies federal courts recalls that these are courts of limited jurisdiction. Unless you fit within a specifically defined class of cases, you may not have your case tried in federal court. State courts, in contrast, are courts of general jurisdiction. There are a very, very few cases that can only be tried in federal court; with those limited exceptions, any case can be tried in state court.

And that is where the Schiavo litigation has resided for years, as everyone agreed that the case did not present any federal question – it did not “arise under” the federal Constitution and laws – and the parties to the case were Floridians, so federal courts did not have diversity jurisdiction. The case had a suitable home in the Florida courts, and meandered its way through them at the trial and appellate levels (including a brief stop in Washington, where the Supreme Court denied certiorari).

When Florida’s highest court made its final ruling, you would have assumed that that was that. But considering the strength of the emotional issues involved, perhaps it should not have come as a surprise that the losing set of litigants would seek a legislative solution. The surprise is that their plea found a sympathetic ear in Congress, of all places; in a body controlled by a party that has devoted itself to limiting governmental intervention in the affairs of families and in purely state court matters. This devotion apparently stops short when the state court’s resolution of the issue conflicts with Congress’s judgment as to which choice should be made.

I emphasize that I do not urge one side’s position over another on the underlying issue here; I simply do not have enough information to enable me to take sides. But the damage that this precipitate Congressional action will wreak will last far beyond Ms. Schiavo’s life, no matter how long that is. Congress has seen fit to pass legislation that casts aside John Adams’ characterization of our nation as “a government of laws, not of men.” Although the legislators were careful to craft the language of the statute in the narrowest possible terms, so as to prevent its use in other difficult cases, that very focus creates a precedent in itself. Congress has demonstrated that it is willing to intervene in purely state court matters, in order to secure the result it desires. In doing so, it has expressed a willingness to extend federal jurisdiction on a case-by-case basis, using tweezers to remove a specific case from the state court docket and place it in federal court. I have seen discussions elsewhere of the Equal Protection issues such legislation raises, and I won’t repeat those here. But this, clearly to me, is an unprecedented step in the wrong direction.

By the news accounts I have read of yesterday’s federal court hearing (and yes, I know enough to be skeptical of those, too), the ultimate result in federal court may be the same as it was in state court. In that event, one might say that Congress’s actions were of no effect. But that view would be wrong. Congress has rung a bell that it cannot unring.