Courage and Judicial Activism

This is Judge Stanley Birch’s stirring separate opinion in the decision of the U.S. Court of Appeals for the 11th Circuit (Atlanta) to reject the appeal of Terry Schiavo’s parents under the special statute Congress passed last Monday giving federal courts jurisdiction over that single case.

A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of “activist judges.” Generally, the definition of an “activist judge” is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution.

In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people — our Constitution. Since I have sworn, as have they, to uphold and defend that Covenant, I must respectfully concur in the denial of the request for rehearing en banc. I conclude that Pub. L.109-3 (“the Act”) is unconstitutional and, therefore, this court and the district court are without jurisdiction in this case under that special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case.

And if you think this comes from a liberal jurist, you’re way wrong. Birch is from rural Georgia, was an Army lieutenant in Viet Nam from 1970-72 and was nominated to the federal bench by by George H.W. Bush on March 22, 1990. That’s a conservative bio if I ever heard one. And as Ed Brayton from Dispatches from the Culture Wars cogently points out—

He voted to uphold the Florida law banning adoption by gay couples, a case the Supreme Court refused to hear a few months ago. In writing the opinion in that case, Judge Birch strongly criticized the ruling in Lawrence v. Texas, the case that overturned state laws against sodomy. He wrote that he thought the law should be changed and was unwise, but he refused to allow his personal feelings to govern his judicial decisionmaking, saying bluntly in his ruling, “Any argument that the Florida Legislature was misguided in its decision is one of legislative policy, not constitutional law.” So when Judge Birch speaks about judicial restraint, he’s certainly worth listening to.

We need more judges like Stanley Birch, judges who have the courage to tell it like it is and not base decisions on political expediency.