Schiavo case: How many more chances?

Now that a Federal Court is set to hear the case, how many more appeals are likely if the parents’ request is denied?

At what point does all the appealing on shaky grounds become contempt of court?

Honest questions. Not looking for this to get ugly. I think there might be a thread or seven in the Pit for that.

In the federal court system, there are three levels, the District Courts, the Courts of Appeals and the Supreme Court. Currently the case is before the District Court in Tampa.

As I write this, the District Court Judge has heard arguments but not made any preliminary ruling on whether to restart the feeding tube. The Judge could either rule, as a preliminary matter, that the tube should be restarted or not (i.e. the court could grant or deny a preliminary injunction or temporary restraining order). Whatever the ruling, it would only be effective until the the Court made a final ruling after hearing all of the evidence.

Under federal court procedures, the grant or denial of a preliminary injunction may be immediately appealed to the Court of Appeals, something that is likely to happen in this case, particularly if the court does not order the feeding tube restarted. After any ruling of the Court of Appeals the parties may ask the Supreme Court to consider the matter (i.e. petition for a writ of certorari), though the Supreme Court reviews very few cases, and would be likely to decline to rule on a preliminary injunction in this case. Because of the emergency nature of this case, these appeals would likely occur very quickly.

The same series of appeals would likely occur after any final ruling, though they would probably proceed in the usual deliberative pace of appeals (i.e. take several months, at least).

If Mrs. Schiavo were to die at any time during the litigation, it would likely stop the process because the questions would become moot.

The SCOTUS has already refused to take part…So it’s all a moot point.

Could the judge delay or just flat out refuse to render a decision for, say, 14 days (making it 17 days w/o the tube, and therefore most likely deceased at that point) if he feels that husband is in the right in this, or is he bound by a time limit?’s breaking news banner says that the federal judge has refused to order re-insertion of the feeding tube. This thing could wind up in appellate court, but AFAIK, the feeding tube can’t be reinserted without an order to do so.


Casey the judge has the right to delay until Terri Schiavo dies, but injunction requests are almost always resolved within a few days. As MsRobyn points out the federal judge ruled against the injunction request to re-insert the feeding tube in under 24 hours, so now the family is appealing to the 11th Circuit Court of Appeals in Atlanta.

Presumably that court will deny the injunction request on legal grounds (since the Schindlers’ request to keep Terri alive is based on emotional, not legal reasons) at which point the Schindlers can be expected to appeal to SCOTUS, which will almost certainly refuse to hear the injunction request (since it has refused prior appeals in this case).

However, if I understand this correctly, while the injunction request has been denied by the Federal court, the case can still proceed as long as Terri Schiavo is alive, even though she’s off the feeding tube. It’s just unlikely she will survive until the case is heard and a verdict reached.

At what point is there no legal recourse? If the Supreme Court refuses to hear an appeal of a Federal Court decision, is that the final word?

I realize that if she dies, all legal wrangling in this aspect of the case comes to a close. But suppose it was reversed. Say the Schindlers have had her on a feeding tube, and Schiavo wants it out. He’s argued to have it taken out for years and years in State Court, and now he’s in the Federal Court system. In this case, the potential for continued and drawn out hearings and appeals seems more likely. At what point in this scenario can or will the legal system file a Writ of Enoughus is Enoughus?

If the Supreme Court refuses to take up a case from a lower court (called granting certiorari), the options are basically over. The highest-extant ruling will stand. If the appeals court has upheld the determination of the trial court, the trial court’s mandata will issue and the case will be over. If the appeals court rejected any part of the trial court’s actions, then the case will return to the trial court for further proceedings consistent with whatever the higher courts have said. This could mean a new trial or even starting from scratch depending on what stage the case was in when the ruling was made which the appellate court considers to be in error, but it depends on context.


The point at which there is no further recourse is when the District Court makes a final order, the Court of Appeal denies the appeal, and the Supreme Court refuses to stay enforcement of the final order/appeal.

As I said above, assuming Mrs. Schiavo does not die in the interim, there are likely two rounds of appeals to go, first of the preliminary injunctive ruling and then of the final order. As it stands as I write this, the District Court denied the motion for a temporary restraining order and Mrs. Schiavo’s parents are going to appeal that denial to the Court of Appeal for the 11th Circuit in Atlanta.

If the Court of Appeal denies the appeal, the parents will almost certainly seek Supreme Court review. What would happen then is that the parents would apply for a “stay” from Justice Anthony M. Kenedy, who is the Circuit Justice for the 11th Circuit. Under the Supreme Court rules, Justice Kennedy can either rule on the application or refer it to whole court. If he rules on it himself and denies the application, it can be resubmitted to another justice. However, in the appeal of the prior federal court order in this case (in which the federal court declined to review the state court judgment prior to the special Congressional legislation this weekend), Justice Kennedy referred the application to the stay to the whole court, which denied it. (PDF of Supreme Court Order denying stay). I would presume that Justice Kennedy would likewise refer any application for a stay to the whole court. I don’t know how the Supreme Court would review on a stay application, but generally they are very rarely granted.

If the feeding tube is not reinserted after Court of Appeal and Supreme Court consideration, it appears medically likely that Mrs. Schiavo will die before additional court action, effectively ending the case. However, if the tube is ordered to be reinserted, there’s a good chance that she will remain alive for the duration of further proceedings.

What would happen in that instance runs into speculation. However, there would be a trial or hearing in District Court on the merits of the action, which would result in a final order or judgment. The losing party in the District Court has an automatic right of appeal to the Court of Appeal.

The Court of Appeal has several options on hearing an appeal. It can affirm the judgment, reverse the judgment, or affirm it in part and reverse it in part. If it reverses in whole or in part, the Court of Appeals can remand the case for further consideration in the District Court, which would allow a further appeal after the final judgment on remand. On this further appeal, the Court of Appeal would again have the same options and the possibility of remand. Theoretically, this can go on forever, but in reality, subsequent appeals usually involve very narrow points and don’t require repeated iterations.

On any ruling of the Court of Appeals, the losing party may petition for Supreme Court review. If the Supreme Court grants review, it also has the options to affirm, reverse, or affirm in part and reverse in part, and can likewise remand to the Court of Appeals or District Court. The likelyhood of multiple appeals to the Supreme Court is small, because the Court does not like to take cases unless it can make a decision that will conclusively resolve the important legal issues. However, if the Supreme Court remands, it can restart the bouncing up and down between the District Court and Court of Appeals discussed above.

That’s the theoretical path that the case can take. However, it is unlikely that this case would have many iterations as it involves narrow (though important) legal issues, but not really any factual disputes: the main question is whether there was Constitutionally required due process in the Florida state court proceedings, and the facts of what happened in the state courts are all set out in the court records and documents. Whatever the District Court decides, it is likely that the Court of Appeals and Supreme Court will have enough of a factual record to decide.

In summary, in this case, assuming that Mrs. Schiavo survives and after the question of a preliminary order reinserting the feeding tube is resolved, it is unlikely that there will be more than one trip up the federal appeals ladder.

Well, now. Are we talking standard appellate procedure or Martian appellate procedure. After all, the whole let’s pass a bill giving this one person access to additional review in federal court has taken us down a sort of Orwellian hole. So let’s consider a few additional possibilities:

  1. Pack the court. While Roosevelt was unable to accomplish this feat, it is credited with causing the “switch in time,” by which FDR ultimately got his way.
  2. Pass a statute directing the District Court or Court of Appeals to “reconsider” its opinion until it reaches the desired result. While most constitutional scholars would consider this an enormous offense to the separation of powers established in the Constitution, the same scholars are already offended by the current legislation.
  3. Pass a statute selecting the judges who are to consider the case. Forum shopping in the federal courts is not a new concept. See, e.g.,
  4. Have the Judiciary Committee rush through an important change to the Federal Rules of Civil Procedure and the Federal Rules of Civil Procedure: “Probability of success on the merits is irrelevant to a stay application if the moving party’s last name is Schindler and the case involves their daughter, whose last name is Schiavo. This exception shall not be constued to apply to any application for stay of execution.”

With respect, Gfactor, and keeping this in GQ, at some point the courts would throw out the kind of measures you are suggesting. Indeed, there are serious Constitutional questions about whether the present law violates the equal protection, ex post facto, bill of attainder or due process clauses. The current District Court ruling on the temporary restraining order sidesteps those questions, though they would come up on a full review of the merits.

I think the present legislation was carefully crafted to avoid some of those questions, though we shall see if that was successful provided Mrs. Schiavo’s death does not render the question academic. The additional measures you suggest would probably be dismissed much more quickly, particularly after the current round of federal court review.

Billdo, I agree with you on all points. We all hope that none of those approaches would be tried, let alone succeed (well, some of us do, anyway).

As I understand the District Judge’s ruling, he held that there was a very low probability of success on the merits–not so much a sidestep as an accurate application of existing law regarding the grant or denial of injunctive relief. The fact that the administration expressed displeasure with the Judge’s ruling is a little disconcerting, however, and leads me to wonder what else they might have up their collective sleeves.

I don’t think so. I don’t think any of that stuff will ever get through Congress, but if it does, I think the courts would accept it. I don’t actually see constitutional problems with any of it.


Frankly, I’m a little surprised W has not tried to pack the court yet. I suppose he doesn’t really need to.

Actually, the District Judge wrote: “While there may be substantial issues concerning the constitutionality of the Act, for purposes of considering temporary injunctive relief, the Act is presumed to be constitutional. Benning v. Georgia, 391 F.3d 1299, 1303 (11th Cir. 2004).” I’d consider this to be a sidestep of the Constitutional question in favor of getting to the substantive question of whether success on the merits was likely.

Cliffy, although a detailed discussion of whether those hypothetical measures would be Constitutional probably goes beyond the rules of GQ, the courts are rather hostile to legislative attempts to create special rules for individual cases. I will cite Justice Scalia’s 1995 opinion Plaut v. Spendthrift Farm, Inc. in which the Court found Unconstitutional a law that sought to overturn a judical decision dismissing a case. Likewise, in the Schiavo matter, the Florida Supreme Court overturned the Florida legislature’s special law to give Governor Bush the right to order reinsertion of the feeding tube. As to whether those particular measures would be overruled, I don’t know.

The initial question in this thread was (as elegantly restated) will there be a “Writ of Enoughus is Enoughus”? At its heart, the Schiavo matter is a case about Mrs. Schiavo’s right to refuse medical treatment, as recognized in Cruzan v. Director, Missouri Department of Health. The question is whether Mrs. Schiavo would have desired to be kept alive by artificial nutrition and hydration under the circumstances she now finds herself in. The initial guardianship court found that there was clear and convincing evidence that she would not have desired artificial nutrition and hydration. That decision was appealed to the Florida intermediate appellate court, which affirmed, and the Florida Supreme Court declined to review the appellate decision.

All of the wrangling in the state and federal legslative, executive and judicial branches after that have been attempts to collaterally attack that basic ruling. Ultimately, at the end of the day, for the parents to be sucessful, they must overturn the core ruling. The latest federal case hasn’t directly challenged the correctness of the guardinship court’s ruling, but is just (in my view) nitpicking the procedures in the guardinship court, procedures that have been extensively approved in the Florida appellate courts.

What the ruling by the Florida District Court, and any appeal of that ruling may show is that, despite the emotional appeal, the legal case of Mrs. Schiavo’s parents is considered by many experts to be weak. The parents essentially have to dig themselves out of a very deep legal hole to get some court to reconsider the core question of what Mrs. Schiavo’s wishes would have been. Even if that question is reconsidered, it appears to my cursory review of some of the decisions in the matter, that the parents don’t have much evidence to refute the testimony of several witnesses that the guardianship court initially relied on to order nutrition and hydration stopped.

Kind of a stretch from the Benning case. But the principle is sound. Courts generally avoid finding a law unconstitutional if they can. Here the result would be the same–injunction denied, so the Court probably acted correctly in avoiding the constitutional question.

I believe I pointed this out in item #2. I agree that it should not be done, and that the Supreme Court should not permit it if it were. Would it happen? That’s harder to predict.

BTW, thanks for the cite to Plaut, the last case on point that I was aware of was Robertson, which is kind of mushy on the issue.

Billdo, I think you’re right about #2 now that I look at it more closely. :smack: I do sorta remember Plaut*. 1 and 4 I think would definitely be constitutional and effective if they could be worked before the appeal gets decided, which of course is unlikely. (Impossible in the case of #1.)

I thought that courts aren’t allowed to sidestep jurisdiction anymore. Wasn’t there a Scalia-penned decision in, oh, let’s say ~'98 that prohibited this practice. (I remember someone asking him a question about it when he spoke in my Federal Courts class.)



The point being that while courts normally like to get rid of cases on the easy questions if possible for all the obvious reasons, a lack of jurisdiction means that a court has no right to make a pronouncement on a case. Therefore, anything the court says on other issues presented will be illegitimate, as would the precedents therein set.