Law Trumps Life

How the Right went wrong in the Schiavo case

In the aftermath of Terri Schiavo's death, Republicans are disgusted with the courts, Democrats are disgusted with Republicans, and moderates are disgusted with politics. In other words, life is back to normal. Still, the Schiavo affair was illuminating. Democrats, it revealed, are not the only ones who are losing touch with Main Street values.

Republicans failed to keep Schiavo alive, and they also took a beating from public opinion. "Every national media poll…has found a majority of Americans agreeing with the court rulings that prevented reinserting the [feeding] tube that was removed on March 18," reported the Gallup Organization on March 29, two days before Schiavo's death. As William Schneider noted in this magazine last week, an "overwhelming" 82 percent of the public told a CBS News poll that Congress and the president should not be involved in the case. Majorities—not just of liberals and Democrats, but also of conservatives, Republicans, churchgoers, and white evangelical Christians—agreed that federal politicians should butt out.

After Schiavo, Republicans looked diminished in their claim to speak for the nation's moral values. President Bush, who rushed theatrically back from Texas to sign a law passed specifically for Schiavo, looked more like president of the cultural Right than of the country. Riding to the rescue of a damsel in distress, Bush and congressional Republicans were greeted not with a kiss on the cheek but with a sock in the jaw.

How could Republicans have so badly misjudged Main Street sentiment? After 15 years in which Schiavo lay in what most doctors said was a persistent vegetative state, the courts of Florida, acting on what her husband said were her wishes, removed Schiavo's feeding tube and let her starve while her parents looked on. No civilized person could watch this excruciating process without flinching. Yet appeals to the "culture of life" met with stony public indifference, bordering on hostility. Why?

One reason is that most Americans hate the idea of being kept alive in a vegetative state. Three-fourths say they would not want to be fed if they were in Schiavo's condition. In 1997, the public told Gallup that "the possibility of being vegetable-like for some period of time" was the most worrying of 24 end-of-life problems.

Schiavo's parents maintained that she was in a "minimally conscious state," rather than a vegetative one. Advocates of keeping her alive argued that if the media and pollsters had told the public as much, opinion might have flipped.

Maybe, but probably not. Activists claiming to defend the culture of life ran into trouble not because the public misunderstood the situation but because they themselves misunderstood the public. Life is not the ultimate public value for most Americans. Law is.

Conservatives, of all people, should know this, because they have been saying it for years. 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.

With the phrase "if not perfectly crafted," the conservative justices acknowledged that Florida's election law might have been flawed and might even have countenanced inaccuracy. But if courts and politicians change the rules in search of perfect justice in each particular case, they will replace law with a quicksand of caprice.

Although Republicans forgot those principles in the Schiavo case, the public remembered them. The public also remembered that following rules laid down in advance is more important—not less important—when someone's life is at stake. That is why the courts place such a premium on regularity and finality in capital punishment cases. Conservatives are adamant that appeals in capital cases must come to a timely end, even if a few stones are left unturned.

When the government went to war against Saddam Hussein, it made a decision to kill people, inevitably including some blameless people. When it conscripted Americans to fight in Vietnam, it seized them bodily and placed their lives at risk. Whenever it executes a convict, it kills a human being in cold blood. Everyone understands that the government will make mistakes, even in life-and-death cases. The best we can hope for are sensible rules that balance fairness and finality.

In the Schiavo case—as with many capital cases and as with Florida's 2000 election dispute—there is ample room to argue that the law was flawed, or that the courts reached the wrong result. No one denies, however, that due process was followed—and followed, and followed. The Schiavo case "wound its way through six courts for seven years," reports the Associated Press. The Supreme Court denied six requests for intervention. That did not make the outcome right, but it did make the outcome an outcome.

The surprise in the Schiavo case was not that Democrats were so confused and conflicted (what else is new?) but that Republicans came down so solidly against the law-and-order principles—regularity, finality—in which they have invested so much. Some of them seemed to have lost touch not just with public sentiment and conservative principles but with reality itself. 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.

In telling the politicians to take a hike and let the law do its job, the public was acting on a hallowed conservative moral principle: "Enough is enough." Most Americans, including most conservative Americans, clung to their instinct for good legal order in a messy world. In other words, they clung to traditional Republican values. Which is more than the Republicans in Washington did.

In her 2000 article, Emery concluded by asking, "Do [Democrats] really want elections that are infinitely reviewable, subject to challenge on every slight glitch, every hurt feeling, every bright sense of outrage? Do they think life can be fair without law?" Good question. In 2005, what do Republicans think?

© Copyright 2005 National Journal

Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. This article was originally published by National Journal.