Jonathan Rauch writes:
More than four years before Schiavo, another difficult legal case transfixed the country. In Bush v. Gore, the outcome of the 2000 presidential race depended on Florida's disputed vote. Democrats, having narrowly lost in the initial tally, demanded manual recounts. In an election, they said, accurately determining the intent of the voters is surely the ultimate value. What could trump that?
Law, replied Republicans. They insisted that a fundamental principle was at stake. Florida's election statutes did not provide time or authority for manual recounts, they said; and if the rule of law means anything, it means not making up the rules as you go along. In The Weekly Standard, Noemie Emery wrote that the two sides had "ended up fighting to vindicate the deepest beliefs of their respective parties. Democrats believe in intentions and feelings.... Republicans believe in the rules."
Democrats, Emery explained, "are the party of malleable standards, in the interests of what they think of as just." They "want courts and well-intended politicians to intervene to engineer outcomes they think are fair." Conservatives, in contrast, know that life is unfair, but "they do not believe laws should be calibrated to account for individual instances of unfairness, as there is no legal system conceivable that can begin to account for all the myriad forms of unfairness life metes out." After all, "there is no way to remove error from human endeavor. Life is chaotic, which is why we need rules to channel it, to give order to happenstance, and keep things from reeling out of control."
Conservatives believe that sound law depends on predictability and finality -- or at least they did before the Schiavo case. The rules should be written in advance instead of being continually reinvented on the fly, and legal disputes should not be allowed to drag on and on. In Bush v. Gore, the Supreme Court's three most conservative judges -- Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas -- made their stand on those grounds. "The Florida Legislature has created a detailed, if not perfectly crafted, statutory scheme," they said. In other words, Florida courts had no business rewriting the rules after the election.
One might argue that the Terri Schiavo case was flawed, but no one can argue that due process wasn't followed multiple times over. The law wasn't broken. Judges didn't overstep their authority. The legislature didn't fail to do its job. All that happened was that the reality of law and society didn't accord with what religious conservatives wanted, so they tried to change the rules after the fact and failed. Now they're really mad and looking for a scapegoat. Judges are at the top of their list because if they can undermine an independent judiciary, or at least make more judges like them, they will better be able to control American society.
Tony Perkins, the president of the Family Research Council, was quoted in The New York Times as saying, "It shows just how much power the courts have usurped from the legislative and executive branches that they now hold within their hands the power of life and death." Life-and-death decisions usurped by courts? It is precisely because life-and-death cases are so inflammatory that we have always entrusted them to the courts, the most bureaucratic and phlegmatic branch of government. Conservatives would have a cow if Congress wrote a special law to save Carla Faye Tucker or some other sympathetic death row inmate, which is why the last time that Congress wrote such a law was -- let's see -- never. And in Schiavo's case, judges -- not politicians or, come to think of it, the Family Research Council -- were the ones standing up for the public's values.
Groups like the Family Research Council have never stood up for the public's values. They have only ever stood up for one thing: achieving a greater degree of control over people’s lives in order to force them to live according to stricter interpretations of Christian orthodoxy.
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