demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people - our Constitution." "Because the special legislation passed by Congress and signed by President Bush "constitutes legislative dictation of how a federal court should exercise its judicial functions (known as a 'rule of decision') the Act invades the province of the judiciary and violates the separation of powers principle." To hold otherwise, Judge Birch concluded, would be to act in a manner consistent with the label "activist judge." U.S. Supreme Court The Schindlers appealed again to the U.S. Supreme Court late on the night of March 23. They argued that Congress intended for the feeding tube to be reinserted when they passed the "Relief of the Parents of Theresa Marie Schiavo Act" (S 686 ES). The case first went to Justice Anthony Kennedy, who is responsible for all emergency appeals from the 11th Circuit. Although he could have acted alone, Kennedy chose to refer the case to the entire Supreme Court. The Court declined to grant certiorari on the morning of March 24 in an unsigned one-sentence order (as is typical for nearly all rejections of appeals). One reason the Court may not have accepted the case is that doing so might force the Court to develop a uniform nationwide test for the issuance of preliminary injunctions under Rule 65 of the Federal Rules of Civil Procedure. The Court has consistently denied review in every case raising that possibility for the past few decades, which is why every circuit has its own test for when such injunctions should be issued. As noted above, Congress has never stepped in to resolve the circuit split on the test for preliminary injunctions, and did not do so in this case, even though it has the power to do so under the Rules Enabling Act. Unfortunately for the plaintiffs, Schiavo happened to be a resident of the 11th Circuit, which has the most difficult-to-overcome test of any federal appellate court. Most other circuits have more flexible tests with sliding scales which allow the court to place more weight on allegations of extreme hardship for the plaintiff if the injunction or TRO is not granted. Plaintiffs' attorneys seeking preliminary injunctions prefer the plaintiff-friendly 2nd and 9th Circuits whenever possible, but that was not an option in this case; district courts in those circuits would have lacked personal jurisdiction over the