If the Supreme Court refuses to touch this morning’s 2-1 ruling from a three-judge panel, Terri Schiavo likely will die of thirst by week’s end. The New York Daily News reports that the subject of so much litigation is “fading fast.”
Two of the three judges wrote that Terri’s parents had “failed to demonstrate a substantial case” for restoring the feeding tube so that they can get on with a determination on a number of legal issues.
Dissenting justice Charles R. Wilson charged foul. He said it was clear that Congress had intended for the case to be given another shot. His point is fairly evident from the text of the bill. Congress authorized Terri’s parents to bring suit, then it added:
In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
I’m not a lawyer, but I believe the relevant term there was de novo. The Law.com dictionary explains that the term is “Latin for ‘anew,’ which means starting over, as in a trial de novo. For example, a decision in a small claims case may be appealed to a local trial court, which may try the case again, de novo.”
In other words, Congress tried to hand the case over to the federal courts and the federal courts so far have said “No thanks.” The case will now go the Justice Anthony Kennedy of the United States Supreme Court. He can choose to take up the case or query the other justices on where to go from here.