23 May 2005

Brief Schiavo Retrospective

From Jonathan Adler's piece today on NRO (emphasis added):

Even if one thinks Justice Owen got this decision wrong, it is difficult to label her opinion “activist.” Deference to a trial court’s fact-finding is one of the bedrock principles of appellate review. If this is to be considered “activist,” the label almost loses its meaning.


Now, I felt that Michael Schiavo had some manner of ulterior motive regarding Terri's life (notwithstanding the obvious issue of his new de facto wife and children therewith). I felt that Judge Greer's decisions were very poor, and the legal fact-finding that he put forth was highly suspect. However, he made that fact-finding, and once he did, it seems that the appellate courts were quite right (in a strictly legal sense) to abide by those 'facts.'

However, since Michael intended to starve and dehydrate Terri despite the uncertainty in her wishes and the clearly stated willingness of her family to care for her, from a moral perspective perhaps the letter of the law and/or judicial procedure should not have been paramount. It's a sticky issue - for those (like me) who believe the law should have a moral foundation (respect for life, etc.), many efforts to introduce an absolute moral argument into our current legal system are seen as ideological and activist by those who don't share that same viewpoint. I suppose in the end it's the judges who decide.

Personally, that makes me uneasy...

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