I think your analysis of Boies' argument is unfair.
A majority of both houses of Congress passed an extraordinary law to give a woman a second chance at having her constitutional rights vindicated.
There was no pressing reason to kill her immediately. Nobody's rights were being trampled on but hers, and that was supposed to be looked at with fresh eyes.
Why not allow the legal process to work?
When the Supreme Court ruled that Georgia had no right to seize the land of the Cherokee Indians, President Jackson said, "they've made their ruling, now let them enforce it."
Here we have a similar situation. Congress passes a law, and the judges say, "they've passed their law, but she's in our power, not theirs."
Where is the separation of powers? Where are the checks and balances?
Is it? Substance is, all too often, in the eye of the beholder. Tell me, then, what is the material difference between his argument and, say, Blackmun's argument in Roe? Harry certainly didn't let form stand in the way of his idea of substance. If we take the opposite tack, and exalt substance over form, what prevents the law from being nothing more than a naked power struggle, to see who can impose their idea of substance on another? What, if anything, does law mean when we denigrate form in favor of substance? Are we not simply reducing law to someone's whims about what constitutes "substance", where judges' decisions hinge on whether they had eggs or pancakes for breakfast?
There was no pressing reason to kill her immediately.
What is this "immediately" to which you refer? More like ten years. Ten years it took to work its way up and down the courts. Ten years the Florida legislature had to revise their laws on guardianship. Ten years the Congress had to throw their Hail Mary pass. And they sat on their hands for ten years, until the very last minute, when the clock was finally wound too far down to produce an effective remedy in the form of expanded federal jurisdiction with mandatory relief. No problem - pose for the cameras, punt to the courts, and let them take the fall for ten years of inaction.
Sorry, I see no "immediately" here. I see ten years, which was finally spiked by the bunglers in DC, who had a clear and unobstructed path to the end zone with the clock running out, but still managed to drop the ball on the one yard line.
Here we have a similar situation. Congress passes a law, and the judges say, "they've passed their law, but she's in our power, not theirs."
Where is the separation of powers? Where are the checks and balances?
What good is power if Congress cannot or will not wield it? Again, they could have avoided even the possibility of a dice-roll by mandating relief, but they did not. "Something bad will happen" is not enough to gain injunctive relief. "We need more time to gather new evidence" is not enough to gain injunctive relief. These things are all eminently foreseeable, and I have my doubts as to whether or not they were really taken by surprise that Whittemore and the 11'th didn't rush in to imagine some new parsing of the bill where "may" means "shall", particularly when the legislative record clearly records that Congress considered mandatory relief but rejected it. But they didn't see it coming. Right. Well, *I* saw it coming. Maybe I should be majority leader.