The Fervor Of Political Passions

United States Court of Appeals, Eleventh Circuit, by Birch, Circuit Judge, specially concurring:

"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. 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." Italics in original. Schiavo v. Schiavo