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« Nano-Review: Fantastic Four | Main | Why is Ramon Saul Sanchez Starving? » January 17, 2006
SCOTUS Assisted Suicide Decision
Posted by Bill Three cheers for Federalism (if that's your bag), smaller government and greater personal liberty and self-determination (my bag): The Supreme Court delivered a rebuff to the Bush administration over physician-assisted suicide today, rejecting a Justice Department effort to bar doctors in Oregon from helping terminally ill patients end their lives under a 1994 state law. With three hisses for conservative hypocrisy on "strict constructionism:" Chief Justice John G. Roberts Jr., dissenting for the first time since he joined the court in September, sided with the two most conservative justices -- Antonin Scalia and Clarence Thomas -- in voting for the minority view. From my post about the then-pending case last October: I've previously (and perhaps clumsily) made similar arguments about conservative inconsistency in the application of the "judicial activist" label. There are dissenting explanations (notably from John Tabin) in the comments under that post. But assuming that I'm not overlooking an overriding angle, John Roberts failed his first test of commitment to Federalist principles. More informed legal scholars are free to explain the error in my judgment. An amusing quote from Scalia's dissent: Scalia backed the government's position that assisting in suicide was not a "legitimate medical purpose." Saying that the court's decision "is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business," Scalia wrote that "it is easy to sympathize with that position." However, the government has long been able to use its powers "for the purpose of protecting public morality," he said. Translation: States' Rights! Until Scalia feels that the Federal government has an overriding interest in "protecting public morality," that is. Federal public morality. John Cole has more: All together now, conservatives- “States Rights!” UPDATE: Channeling strict constructionism: "The founders didn't write NUTTIN' 'BOUT NO CYANIDE DOCTORIN'!" UPDATE: See my additional thoughts here. Posted by Bill at January 17, 2006 01:17 PM | TrackBack (6) Trackback PingsTrackBack URL for this entry: CommentsSo according to the Supreme Court, you can't smoke dope but you can kill yourself. Posted by: rbj at January 17, 2006 01:31 PM And of course, we should be able to - at the very least under the care of a physician and in the context of an illness - do both. Posted by: Bill from INDC at January 17, 2006 01:33 PM :Three cheers for Federalism (if that's your bag), smaller government and greater personal liberty and self-determination" Shouldn't that read self-demolition? Posted by: Robb Allen (Sharp as a Marble) at January 17, 2006 01:42 PM Depends, you talking about marijuana or assisted-suicide? Or both? ba-dump-BUMP. Ra-ta-ta! Posted by: Bill from INDC at January 17, 2006 01:45 PM Why is it illegal to smoke a joint, but not to hit yourself in the head with a hammer? We need a Chief Justice Volokh to reverse this decision. Posted by: TallDave at January 17, 2006 02:00 PM Because TD, you have to THINK OF THE CHILDREN©. I'm still pickled tink that here in Sunny Florida you're not required to wear a helmet on a motorcycle yet not wearing a seatbelt in a car is a ticketable offense! Posted by: Robb Allen (Sharp as a Marble) at January 17, 2006 03:30 PM I just finished reading the entire opinion and dissents. It seems to me the dissents are more compelling and legally sound than the majority opinion for several reasons. Despite that, I favor the majority's end result. Before you rush to criticize Scalia's and Thomas's dissents, consider that they were probably right on the money, but it was Ashcroft who made the bad, but legally permissible, call. Posted by: Denny Crane at January 17, 2006 03:33 PM Here's a handy phrase that will help the Right see the light: Drugs don't kill people, people do. Posted by: TallDave at January 17, 2006 03:39 PM Federalism won, yes. But did it win for the sake its own sake, or for other (read: ideological) reasons? My guess would be that the justices in the majority aprove of PAS and in this case allowing PAS by a state just happened to be in line with Federalism. But then maybe I'm missing something. Posted by: Tom at January 17, 2006 03:56 PM Further grist for your mill from the homefront. I've been living in Oregon since this came to the ballot the first time, and it is a textbook case for the federalist argument. It went through a number of iterations, including twice being passed as an initiative, and each time it precipitated a state-wide discussion. More, as it worked its way toward becoming law, it became better policy (the inclusion of the psych exam as one example), and the interest it sparked made sure most Oregonians understood it. By the time it came to the ballot the second time, it passed by a larger majority--despite far more intense opposition from national foes. The notion of federalism--which, full disclosure, as a liberal I am not fully sold on--is that it creates better laws because they pass through more filters, get more testing, and allow for more interesting and innovative laws to arise. If ever there was a case that proved this, it was Oregon's Death with Dignity. Posted by: Jeff at January 17, 2006 04:03 PM My guess would be that the justices in the majority aprove of PAS and in this case allowing PAS by a state just happened to be in line with Federalism. I'm not arguing with that. But this cuts both ways. Posted by: Bill from INDC at January 17, 2006 04:11 PM I agree Bill, we should be able to do both. Posted by: rbj at January 17, 2006 04:28 PM Certainly Justice Thomas isn't being inconsistent - his opinion mainly takes the majority to task for selective federalism for striking down this application of the same statute they upheld (over Thomas' dissent) in the medical marijuana case, a case he now accepts on stare decisis grounds: I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States' "traditional powers to protect the health, safety, and welfare of their citizens." The Court's reliance upon the constitutional principles that it rejected in Raich – albeit under the guise of statutory interpretation – is perplexing to say the least. Thomas also noted that the parties didn't raise the constitutional issue here, so it wasn't proper anyway for him to revisit it. Posted by: Crank at January 17, 2006 09:38 PM Agreed. Once I read Thomas's dissent, I understood where he was coming from. He ripped the Court a new orifice on its hypocrisy with respect to Raich. Forget Alito, I say. Give Thomas two votes. Posted by: Barry at January 18, 2006 10:10 AM You can't be 60170 serious?!? 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