The Judges Have Lost

When you listen to the legal pundits defending the starvation of Theresa Marie Schiavo, what you hear again and again is a variation of one theme: the courts establish the facts, the courts have reviewed this again and again, the courts have decided otherwise. We are being told to suspend moral judgment and to deliver our consciences and our common sense into the hands of judges and courts. We are called, in true relativistic fashion, to trust process over substance, to trust a so-called enlightened and highly educated elite over moral tradition.

That is the Nazification of America. Even in the military, my understanding is that a soldier has no obligation to follow manifestly evil orders--such as an order to torture someone. But we are now being asked to calm ourselves and stoically accept the starvation of an innocent person because "the courts" have handled it all for us.

Good judges and lawyers know that the authority of a court derives in the long run from the fact that all parties leave the court believing that they have at least been fairly heard. Otherwise, the fragile commodity of judicial authority evaporates quickly.

Large numbers rightly believe that Theresa Schiavo has not been fairly treated in court. Her guardian is in a stunning conflict of interest by having maintained for years a politely termed "common law marriage" with another woman. But the courts have still let him have the final say over her life, even though her parents and siblings are eager to care for her. Without a truly independent guardian about whom there is no reasonable doubt whatsoever, no sensible person can have any faith in the judicial process applied in this case.

You cannot ask people to blind themselves to reality and simply defer to the indefensible. What will be the result? My personal prediction is that many will demand new laws to trim the power of judges given the spectacle we have seen before us. The judges in this matter, with some possible exceptions, have diminished themselves. Future laws will recognize that, as a whole, they cannot be trusted and are no longer worthy of our full confidence.

That's what happens in a morally relativistic culture. In 1930 or 1940 or even 1960, it would have been unimaginable that a man living in open concubinage with another woman would be confirmed as a guardian for his stricken spouse. But given the typical attitude that anything goes and anything is acceptable in sexual matters, this open concubinage is granted the cultural cover of "privacy" and made irrelevant to the legal proceedings. That is the same cover of "privacy" that first justified the explosive marketing of contraceptives in the sixties and which was extended to justify abortion in the seventies.

Without a moral consensus, judges can't be trusted to make the right decisions regardless of the procedure followed. That is why more and more laws will be passed restricting the discretion and powers of judges. Moral relativism makes for bad judges. So restrictive laws must step in to recognize that cultural reality. When a culture loses its moral bearings, trust disappears. And so does real authority.