Judicial Independence, JudicialResponsibility: A DistrictJudge's Perspective

As many of you are aware, two-and-a-half years ago I was unexpectedly and unwillingly vaulted into the public eye when tragedy struck my family and me. On February 28,2005, a pro se litigant broke into my home in the middle of the night and lay in wait with a plan to kill me because I had dismissed his case. I will not elaborate, but suffice it to say, the cruel hand of Fate passed over me and took the lives of my husband and my aged mother, who was visiting in our home. By this inexplicable chain of events, I am here today to speak with you. As you can readily imagine, this has been a cataclysm in my life and in those of my children that one could never overestimate. I speak of it now only because it was the launch from which I began to think about judicial independence.After the funerals, my youngest daughter and I remained in seclusion under the protection of the United States Marshals Service for a number of weeks. One of the things I did from time to time to distract myself during those days was turn on the television. The biggest story during March of 2005 was another family's tragedy, that of Theresa Schiavo, who according to news accounts had been in a persistent vegetative state for fifteen years.1 The privacy one would hope for in such a situation was lost to an appalling feeding frenzy in which all the news channels and their pundits weighed in on either side of a bitter legal battle between those who claimed to love her most. The dispute that brought the parties to court was whether Schiavo, had she been able, would have chosen death over life in her circumstances.2 Merely to state the issue illustrates the paradox it presented.The Florida courts ruled in favor of her appointed guardian, her husband, who after ten years had petitioned the court for an order that a feeding tube that kept his wife alive be removed.3 The opinion of Judge Chris Altenbernd of the Florida Appellate Court is nothing if not respectful of the parties to the case and the heartrending situation the family had endured.4 And I should imagine that most of us lawyers who followed the case, whether closely or out of one ear, assumed that the Florida courts were where the case belonged.Nevertheless, as happened with the pro se litigant in my personal situation, the losing party, the parents of Ms. Schiavo, headed to federal court as the court of last resort.5 But because of the doctrines the courts have developed to deal with the dual jurisdictional structure we have in the United States, there was little hope that a federal court lawsuit seeking to override the Florida court's judgment could get past the front door. Responding to the publicity and outcry from interest groups, on March 21, 2005, Congress set those obstacles aside, passing a law granting to the United States District Court for the Middle District of Florida jurisdiction to hear and determine any federal claim filed by or on behalf of Theresa Marie Schiavo relating to the withholding or withdrawal of nutrition or treatment necessary to sustain her life.6 The door to federal court opened.Schiavo's parents relied on the constitutional right to substantive due process, the Fourteenth Amendment, the Eighth Amendment, and some statutory claims.7 On March 22, the district court denied a motion for a temporary restraining order because it found that the plaintiffs could not demonstrate the likelihood of success on the merits of any of their federal claims.8 Schiavo's parents appealed, and the Eleventh Circuit affirmed on March 23.9 Petitions for rehearing were denied, and the Supreme Court of the United States denied a stay on March 24.10The heartbreaking divide within the Schiavo family became a symbol for the divide within American society over what is characterized as either the right to life or the right to choose, depending on one's point of view.11 It became a political drama of outsized proportions. Although the rulings of the federal courts were paradigms of judicial restraint, many intemperate things were said about so-called activist judges. …