A popular epithet directed by some members of society, including some members of Congress, toward the judiciary involves the denunciation of "activist judges." Generally, the definition of an "activist judge" is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution. In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people — our Constitution. Since I have sworn, as have they, to uphold and defend that Covenant, I must respectfully concur in the denial of the request for rehearing en banc. I conclude that Pub. L.109-3 (“the Act”) is unconstitutional and, therefore, this court and the district court are without jurisdiction in this case under that 1 special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case...
Section 2 of the Act provides that the district court: (1) shall engage in "de novo" review of Mrs. Schiavo’s constitutional and federal claims; (2) shall not consider whether these claims were previously "raised, considered, or decided in State court proceedings"; (3) shall not engage in "abstention in favor of State court proceedings"; and (4) shall not decide the case on the basis of "whether remedies available in the State courts have been exhausted." Pub. L. 109-3, § 2. Because these provisions constitute legislative dictation of how a federal court should exercise its judicial functions (known as a "rule of decision"), the Act invades the province of the judiciary and violates the separation of powers principle.
An act of Congress violates separation of powers if it requires federal courts to exercise their Article III power "in a manner repugnant to the text, structure, and traditions of Article III." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 115 S. Ct. 1447, 1452 (1995). By setting a particular standard of review in the district court, Section 2 of the Act purports to direct a federal court in an area traditionally left to the federal court to decide. See Fla. Progress Corp. v. Comm’r, 348 F.3d 954, 959 (11th Cir. 2004) (noting that the standard of review is for the court to determine). In fact, the establishment of a standard of review often dictates the rule of decision in a case, which is beyond Congress’s constitutional power. See United States v. Klein, 80 U.S. 128, 146 (1871) (noting that Congress may not prescribe a "rule of decision" for a particular case). In addition, "the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties." Loving v. United States, 517 U.S. 748, 757, 116 S. Ct. 1737, 1743 (1996). By denying federal courts the ability to exercise abstention or inquire as to exhaustion or waiver under State law, the Act robs federal courts of judicial doctrines long-established for the conduct of prudential decisionmaking...
The separation of powers implicit in our constitutional design was created "to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." INS, 462 U.S. at 951, 103 S. Ct. at 2784. But when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow. See New York, 505 U.S. at 187, 112 S. Ct. at 2434. Accordingly, we must conscientiously guard the independence of our judiciary and safeguard the Constitution, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo and her family and the recent events related to her plight which have troubled the consciences of many. Realizing this duty, I conclude that Pub. L. 109-3 is an unconstitutional infringement on core tenets underlying our constitutional system. Had Congress or the Florida legislature, in their legislative capacities, been able to constitutionally amend applicable law, we would have been constrained to apply that law. See Robertson v. Seattle Audobon Soc'y, 503 U.S. 429, 441, 112 S. Ct. 1407, 1414 (1992). By opting to pass Pub. L. 109-3 instead, however, Congress chose to overstep constitutional boundaries into the province of the judiciary. Such an Act cannot be countenanced. Moreover, we are bound by the Rooker-Feldman doctrine not to exercise any other jurisdictional bases to override a final state judgment. Should the citizens of Florida determine that its law should be changed, it should be done legislatively. Were the courts to change the law, as the petitioners and Congress invite us to do, an "activist judge" criticism would be valid.
[Read the full court's denial [PDF text, includes concurrences and dissent] of the petition for an expedited rehearing. AP has more. from Jurist]
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