By Stephen Henderson, Knight Ridder

WASHINGTON - The latest rejection of the Terri Schiavo case by a federal court was accompanied by a stinging rebuke of Congress and President Bush from a seemingly unlikely source: Judge Stanley F. Birch Jr., one of the most conservative jurists on the federal bench.

Birch authored opinions upholding Alabama's right to ban the sale of sex toys and Florida's ability to prohibit adoptions by gay couples. Both rulings drew the ire of liberal activists and the elation of traditional and social conservatives.

Yet, in Wednesday's 11th Circuit Court of Appeals decision to deny a rehearing to Schiavo's parents, Birch went out of his way to castigate Bush and congressional Republicans for acting "in a manner demonstrably at odds with our Founding Fathers' blueprint for governance of a free people - our Constitution."

Birch said he couldn't countenance Congress' attempt to "rob" federal courts of the discretion they're given in the Constitution. Noting that it had become popular among "some members of society, including some members of Congress," to denounce "activist judges," or those who substitute their personal opinions for constitutional imperatives, Birch said lawmakers embarked on their own form of unconstitutional activism…

Birch said Congress stepped into territory reserved for the judiciary when it passed the law directing federal courts to hear Schiavo's case without considering its state court history or traditional barriers to federal review.

The law "robs federal courts of judicial doctrines long-established for the conduct of prudential decision-making," Birch wrote. "Congress chose to overstep constitutional boundaries into the province of the judiciary. Such an Act cannot be countenanced."…

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