I’ve been following the progression of the Terri Schiavo litigation all day. I still find it fascinating. As a lawyer, it’s startling to see a case move through the courts so quickly when litigation usually takes forever. Those judges (or their clerks) write fast.

Anyway, here’s what’s been happening in simple terms (I hope?).

On Sunday, as we all know, Congress passed its (highly unusual) law giving federal courts jurisdiction over the case. Once they did that, Terri Schiavo’s parents, the Schindlers, went to federal court.

There are two issues before the federal courts. One: the actual merits of the case — whether any federal rights are being violated by letting Terri die. But preliminary to that is another issue, the one that the courts have been ruling on since yesterday: whether to reinsert her feeding tube in the meantime. A case on the merits would take a while, so it might make sense to reinsert her feeding tube while the actual merits of the case are being decided. Such an immediate action is known as a temporary restraining order (TRO).

However, legal doctrine says that in deciding whether to issue a TRO, a judge has to take into account whether the party seeking the order will ultimately win the case on the merits. It’s sort of strange, because while the judge isn’t actually deciding the merits of the case, he has to sort of “peek” at the merits in order to decide on the TRO.

The federal district judge, Judge Whittemore, decided that the Schindlers were highly unlikely to win on the merits of the case, based in part on the voluminous state court history, so he granted the TRO. Some have said that his stance violates the law Congress passed, because Congress intended the federal courts to give the case a fresh look without taking into account the state court history over the past eight years. However, the Schindlers are claiming that the state court litigation denied Terri’s due process rights. And obviously, the federal courts have to examine the state court actions in order to answer that question. After doing so, Judge Whittemore said it was highly unlikely that federal courts would ultimately rule that Terri’s due process rights were violated in state court.

So the Schindlers appealed to a three-judge panel on the Eleventh Circuit (the federal circuit that includes Florida), which ruled early this morning, 2-1, that Judge Whittmore’s decision was correct. In their appeal, their lawyer cited the All Writs Act, which they claimed allows a federal court to essentially bypass the requirements for a TRO. Two of the three judges disagreed, but the dissenter, Judge Wilson, said that the All Writs Act should permit the reinsertion of the feeding tube. (I’d never heard of the All Writs Act until today, so what the hell do I know.)

The Schindlers then asked for a rehearing by the entire Eleventh Circuit, which consists of 12 judges. (This is typical legal procedure.) At around 3:30 this afternoon, the Eleventh Circuit declined to rehear the case. Judge Wilson and another judge dissented, again on the basis of the All Writs Act.

So… it’s off to the Supreme Court, where Justice Kennedy is the one who covers emergency appeals for the Eleventh Circuit. He can ask the whole Supreme Court to review it if he wants. The Supreme Court has already turned down the case, but perhaps it will want to examine the All Writs Act. Who knows.

In the meantime, Governor Jeb Bush, amazingly, is going to the state courts AGAIN to try to restore the feeding tube, who have already said no several times. Why the outcome would be different this time, who knows.

By the time you read this, more might already have happened.