[JURIST] AP is reporting that the US Eleventh Circuit Court of Appeals has again refused to conduct a full court rehearing in the Terri Schiavo case.

3:35 PM ET – The Eleventh Circuit has denied Bob and Mary Schindler's request for a new hearing en banc [petition text (PDF), JURIST report] on whether a feeding tube for their brain-damaged daughter Terri Schiavo [JURIST news archive] should be reconnected on the alleged likelihood of success for their case in a federal de novo review. A majority of 11th Circuit judges voted against holding a rehearing, and Judge Stanley Birch wrote a concurrence addressing the constitutionality of Pub. L. 109-3 [text, JURIST report], the bill passed by Congress allowing the federal courts to review Schiavo's case. Birch writes:

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 special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case.

Birch wrote that Congress violated separation of powers principles by "arrogating vital judicial functions to itself" and prescribing a "rule of decision." He concluded:

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.

A second concurrence, written by Judges Ed Carnes and Frank Hull, addressed the Schindlers' arguments about the sufficiency of evidence presented in the Florida courts:

Even assuming that this type of sufficiency of the evidence issue is a proper one for an en banc determination, there is no substantial question in this case about whether a rational factfinder could have found, as the Florida court did, that there was clear and convincing evidence that Mrs. Schiavo would not have wanted nutrition and hydration continued in these circumstances. Given the credibility determinations that the state trial court was authorized to and did make, the evidence clearly was sufficient to meet the clear and convincing evidence standard, which the Florida courts had imposed and did apply in this case.

Judge Gerald Tjoflat, joined by Judge Wilson, dissented from the denial of rehearing en banc. Tjoflat wrote:

The plaintiffs have now stated a plausible claim that the Due Process Clause of the Fourteenth Amendment requires clear and convincing evidence of an individual’s wishes before a state court may order withdrawal of life-sustaining nutrition, hydration, or other medical attention….

The relevant question here is whether a rational factfinder could have found by clear and convincing evidence that Mrs. Schiavo would have wanted nutrition and hydration to be withdrawn under these circumstances. The plaintiffs carry a heavy burden, but I do not believe that this question can be determined in this expedited fashion without a hearing on the merits.

Responding to Judge Birch's assertions that the court lacks jurisdiction to hear the dispute, Judge Tjoflat wrote:

This is not a case, to use separation-of-powers parlance, of Congress "arrogating" power to itself, nor is it a case in which one branch of government has "impair[ed] another in the performance of its constitutional duties." Loving v. United States, 517 U.S. 748, 757 (1996) (emphasis added). Instead, Congress has prescribed a particular approach to a particular problem in the general domain of federal jurisdiction, without presuming to dictate—in any respect—our performance of a court’s essential function: "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (Marshall, C.J.)….

Here, Congress has attempted only what has long been established to be within its power to dictate: our standard of review, the effect of a prior state court judgment on that review,6 the application of prudential abstention doctrines, and
the effect of exhaustion requirements. I know of no case barring Congress from so dictating, and Judge Birch does not cite any. Indeed, quite to the contrary, Judge Birch cites cases establishing that both our abstention and exhaustion doctrines are prudential. See ante, at 10. If none of these dictates by itself goes beyond Congress’s power to determine the jurisdiction of federal courts, I know of no doctrine that could convert their aggregation into a separation-of-powers violation. [footnotes omitted].

Read the full court's denial [PDF text, includes concurrences and dissent] of the petition for an expedited rehearing. AP has more.