Rehnquist’s Test

The federal judges of the 11th Circuit have set the stage for a great human drama. The appeals court Wednesday joined the U.S. District Court and the state courts of Florida in refusing to interfere with Michael Schiavo’s decision to remove the feeding tube that has kept his wife, Terri, alive for 15 years in a “persistent vegetative state.”

Now the case goes to the Supreme Court, which will have to act within days or the matter will be moot. This would be drama enough, but, in addition, this could well be the last important decision the court will make under Chief Justice William H. Rehnquist. Rehnquist is seriously ill with cancer. The issues that have riveted the nation about the Schiavo case must surely be on the chief justice’s mind in a very personal way. Also on his mind, we assume and we hope, is his judicial legacy. This includes both the specific doctrines he advanced and his general reputation for probity, wisdom and intellect.

The Schiavo case puts the chief justice to an exquisite test. If there is one principle Rehnquist has spoken for forcefully in his years on the court, it is federalism. And, in particular, it is the right of the 50 sovereign states to be free of interference by the U.S. Congress. For four decades in the middle of the last century, the Supreme Court didn’t reject a single act of Congress on the grounds that the national legislature lacked the power in our federal system. Rehnquist, as justice and then as chief, led the charge to revive the notion of sovereign states and a federal government of limited powers.

On Sunday, Congress did something outrageous in our opinion and extraordinary by anyone’s standards. It passed, and the president signed, a law intended explicitly to reverse the results of state law in a particular case. The Republicans who control Congress and the White House apparently regard it as an urgent matter of principle that Schiavo be kept alive in her vegetative state, and apparently they don’t regard their other alleged principle -- federalism -- as any kind of roadblock.


Rehnquist was a lifelong Republican appointed to the court and then promoted to chief by Republican presidents. He has not disappointed them in his rulings and reasoning. In what may be his grand finale, though, his party loyalty and his judicial principles dictate opposite results.

What Rehnquist thinks about the use and abuse of feeding tubes doesn’t matter, or shouldn’t. What does and should matter is what he thinks about federalism. Legally, this should be an easy case for the chief justice. Politically and personally, it may be harder. Five years ago, Rehnquist allowed politics to trump principle in the disgraceful decision of Bush vs. Gore. Fate has given him a chance for (frankly) a different lead on his eventual obituary. We hope he seizes it.