The Nine [138]
By its specific terms, the law—known formally as An Act For the Relief of the Parents of Theresa Marie Schiavo—instructed the federal district court in Florida to give the case yet another hearing “relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.” The law further stated that the district court “shall entertain and determine the suit without delay.” So on the very day the law was signed, Judge James D. Whittemore held a hearing in Tampa on the case, and the next day he rejected the Schindlers’ attempt to reinsert the feeding tube. The parents appealed to the Eleventh Circuit and then to the U.S. Supreme Court, which on March 24 refused to intervene. By this time, the case had been considered by nineteen judges in six state and federal courts, and between 2001 and 2005 the U.S. Supreme Court had declined to hear the case five times. Terri Schiavo died on March 31.
Her death only increased the rhetorical fervor. On the day of her death, DeLay threatened to impeach the judges who presided over her case, including the Supreme Court justices. “The time will come for the men responsible for this to answer for their behavior,” DeLay said. “We will look at an arrogant, out-of-control judiciary that thumbs its nose at Congress and the president.”
Four days later, Senator John Cornyn, a Republican from Texas, made an even more incendiary statement. Just weeks earlier, there had been a pair of horrific attacks on judges and their families. In Chicago, a deranged litigant before federal judge Joan Lefkow broke into her home and murdered her husband and mother, and in Atlanta, a defendant in a rape case killed the judge in his trial and two others in the course of an escape attempt. In a speech on the Senate floor, Cornyn suggested the attacks on judges might have taken place because of decisions like Schiavo. “I don’t know if there is a cause-and-effect connection but we have seen some recent episodes of courthouse violence in this country,” Cornyn said. “I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in violence.”
The justices watched these developments—the litigation, the frenzied rush to pass a law for Schiavo’s purported benefit, the venomous attacks on the judges—with consternation. The assaults on the judges, and Cornyn’s ugly reference to them, left a particularly strong impression because, unbeknownst to the public, both O’Connor and Ginsburg had also received recent death threats. One of the messages, which was posted in a Web chat room, said, “Okay commandoes, here is your first patriotic assignment…an easy one. Supreme Court Justices Ginsburg and O’Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and Constitutional freedom…. If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.” Ginsburg, with her mordant view of human nature, shrugged the whole thing off.
O’Connor did not. To her, the Schiavo case marked only the latest outrage from the extremists who she believed had hijacked her beloved Republican Party. The hiring of John Ashcroft, the politicized response to the affirmative action case, the lawless approach to the war on terror, and the accelerating disaster of the war in Iraq all appalled O’Connor. (As someone who prized order, O’Connor used a favorite epithet, “a mess,” to describe the war. This judgment was especially painful for her because her only close friend serving in the administration was Donald Rumsfeld, the architect of the war.) But in O’Connor’s list of grievances against Republicans in general and Bush in particular, the Schiavo case was the worst.
O’Connor’s radar for the political center