Very important Supreme Court ruling today, which upheld Oregon's assisted suicide law, passed twice by popular referendum. The ruling was 6-3 and fell along fairly predictable lines. Justice Kennedy wrote the majority opinion, which was joined by Justices O'Connor, Souter, Ginsburg, Stevens and Breyer. Justice Scalia filed a dissenting opinion, joined by Chief Justice Roberts and Justice Thomas, who also wrote his own dissent. I haven't had time to read over the ruling yet, but I will certainly do so. From the abstract, it looks like it was a highly technical decision involved how much weight and deference to give to an administrative ruling from the attorney general rather than a broader decision based upon federalism concerns or upon the commerce clause limits on Congressional power.
Social conservatives will of course be up in arms over this ruling and will accuse the majority of engaging in "judicial activism", which will be both ironic and ridiculous. 90% of the time when they complain of "judicial activism", they mean "unelected judges overturning the will of the people", but here those judges supported the will of the people as expressed in two separate popular referendums. The fact that they will use the very same term to mean two opposite things tells you how completely meaningless that phrase has become.
Update: Having taken at least a cursory look at the three opinions, the most interesting one is the dissent of Clarance Thomas. I think he's absolutely correct when he says that the majority opinion in this case conflicts with their finding in Raich just last year (where Thomas was in dissent as well), but only on the narrow issue of the scope of the commerce clause authority of Congress. It's also interesting to note that, because of the Raich ruling, the state of Oregon likely decided not to argue agaisnt the CSA on constitutional grounds but on the narrower grounds of statutory interpretation and whose interpretation is due what level of deference. It sounds as though Thomas might have been open to a constitutional challenge in the case, but one was apparently not offered because the state of Oregon figured they couldn't win on that count.
Ah, what a tangled mess they have weaved. To some extent, this case really reminds us that with the vast array of legal and interpretive standards at their disposal, it's trivially easy for a justice to reach pretty much any conclusion they want to reach and devise some technical grounds for arguing that it doesn't conflict with their past rulings. In reality, they may all be legal realists despite their vociferous denials.
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Good gods they were stretching in the dissent. I haven't the time now to read the whole thing but it seems that a good portion of the dissent rests on th definition of prescription. It may get stronger later but that particular argument seems rather weak grounds to overturn the well expressed desire, not of Oregon's lege but of it's citizens.
I can't remember the title of the documentary but I'll see if I can find it. This film documents the end of the life of an AIDS victim who chose to get the prescription and eventualy used it. It was rather depressing (obviously) but beautiful in it's amazing depiction of a human suffering yet his burden somewhat lightened by his absolute control over his destiny.
Anyone who has some criticism for OR death with dignity laws should see that documentary. Especialy with the current administrations repeated demonstrations of how little they truly value human life. They want to save those who wish to die, those who gestate in a woman's body and those who exist as frozen embryo's likely to be discarded anyways. Yet they take life without compunction when it suits their twisted ends.
Ed, you need to apply the principle of charity to your opposition more often. How do you know that these folks don't hold to a paraconsistent logic? :)
Speaking of "hypocracy which knows no bounds", Scalia and Thomas can't make up their minds when it comes to state's rights -- here and in Bush V. Gore they don't like them, otherwise they do.
Roberts joining the Scalia/Thomas axis on the court is depressing. I know his predecessor would probably be there as well, but with Alito likely replacing O'Connor, I had hoped he would prove to be more moderate.
This bodes ill for the court's future direction.
sgent wrote:
Speaking of "hypocracy which knows no bounds", Scalia and Thomas can't make up their minds when it comes to state's rights -- here and in Bush V. Gore they don't like them, otherwise they do.
I don't think that fact alone really means much. Placing distinct cases involving different constitutional principles under the rubric of "states rights" doesn't tell us anything about whether a particular case was decided correctly. For instance, take two cases that could be put in this category, Lawrence and Raich. Both involve whether a state law is to be considered valid or not, but the legal issues are quite distinct. The question in Lawrence was whether a state anti-sodomy law ran afoul of the 9th and 14th amendments as they involved a general right to liberty, while the question in Raich involved whether a Federal statute took precedence over a state referendum based upon the interstate commerce clause.
I would argue that the correct decisions would be to deny states rights in the first case and affirm them in the second, and there is nothing inconsistent about that because one involves the limits of federal Congressional power to overrule state laws and one involved the limits of state power to violate the Bill of Rights. The constitution clearly trumps either federal or state law, but in questions of a conflict between the two levels, the first question is whether the constitution grants such power to the federal government or not. In Raich the answer was clearly 'no', despite the majority's illogical insistence otherwise.
J. Scalia's hypocrisy is once again on ample display. Once again abandoning his self-proclaimed "textualist" approach to interpreting the constitution, Scalia instead depends on his own logic and I quote, "If the term 'legitimate medical purpose' has any meaning, surely it excludes the prescription of drugs to produce death".
Well, the voters of surely Oregon disagree with J. Scalia that assisted physician suicide has no legitmate medical purpose. As for the hypocrisy, Scalia admits in his dissent that the government has no numerated power to prohibit or deter assissted suicide, and yet Scalia still labels himself an originaliast while continuing to vote based on his own personal ideology.
Yes, Scalia's dissent is clearly not an originalist decision, nor is it a decision that defers to the clearly expressed will of the majority, the two standards he so often screams in favor of. Scalia is not an originalist and he never really has been. For him, originalism is a convenient stick to use to beat his opponents with when it suits his purposes, and to put away and ignore when it leads to results he disagrees with.
As much as I dislike Scalia, his dissent can't be inconsistent with originalism when the issues in the case are not constitutional at all.
Similarly, while the result in this case seems inconsistent with that in Raich, the issues presented were different, so the majority is not necessarily inconsistent. Judges should decide cases based on issues presented by the parties, not based on all possible issues that might apply. That rule is somewhat flexible and exceptions are acceptable when it is in the clear interest of justice (e.g. an indigent appellant in a death penalty case), but here and in Raich both sides are well-represented and there is no reason to force constitutional issues on the case.
Thomas' dissent surprises me the most, but again, this is not a constitutional case, so even he is not necessarily inconsistent with his past opinions.
Ed: "Scalia is not an originalist and he never really has been. For him, originalism is a convenient stick to use to beat his opponents with when it suits his purposes, and to put away and ignore when it leads to results he disagrees with."
Isn't it for everyone who invokes originalism? Or do you think that there exists a meaningful, internally consistent originalist theory?
enfant terrible wrote:
Isn't it for everyone who invokes originalism? Or do you think that there exists a meaningful, internally consistent originalist theory?
I do, actually. I think what Randy Barnett has called "liberal originalism" is a meaningful and internally consistent originalist theory.
enfant terrible wrote:
Isn't it for everyone who invokes originalism? Or do you think that there exists a meaningful, internally consistent originalist theory?
I concur with Ed regarding Randy Barnett, I'm a huge fan and find few flaws with Barnett's approach. I disagree regarding this case not being a constitutional issue, whether the court decides to address the constitutional matters or not is another matter - Scalia did address the constitutional aspect near the end of his dissent and this is where I find fault in his approach.
I do agree enfant that Thomas's dissent surprised me, Scalia's dissent didn't surpise me, but Roberts disturbed me most of all by concurrding with Scalia's ideological rant; I had higher hopes for Roberts. Let's hope this becomes an anamoly with the excuse being Roberts had just arrived on the court when this case was heard and he may not have had the bandwidth to address this case properly.
So, does anyone think this will cause Congress to change the law? Justice Scalia's attitude is rather irksome. This was simply a statutory interpretation case. If Congress is displeased with the Court's opinion, it can simply amend the law. Yet Justice Scalia is caustic as usual--Justice Scalia has become quite a curmudgeon.Quite often statutory interpretation cases can go either way because the law is vague, sometimes intentionally so. Rational people can read the statute in different ways.My limited law clerk experience taught me that the result in these cases is based on what the judge believes or feels is the right outcome. Then the judge works backwards and often plagarizes the brief of the party she agrees with. All the hullabaloo about interpretative canons is bunch of hot air. Either side to a dispute can find an interpretative rule that supports its desired result.And this doesn't bother me too much because Congress always has the power to write a law that is clear and unequivocal. Instead of berating judges for being 'activists' they should take a bit of responsibility for doing their job well.I also agree with enfant terrible that because this was not a constitutional case, 'originalism' or 'textualism' was not in play.
So, does anyone think this will cause Congress to change the law?
By the sounds of it the ol' "culture of life" team is talking about it. God forbid that a person chooses the way there life will end when the end is inevitable. It is barbaric and sick that the only way to end a persons suffering in most places is to cut off life support - such as a ventilator. Make sure that if they are capable of feeling pain the last moments are shear unmitigated hell for them.
Heres a tip for those who don't wish to die by their own choice - don't bloody well do it.
I think David makes an important point about the ruling, that because it's a ruling based solely on statutory interpretation, Congress can now go back and amend the law in one of two ways if they wish. They can either explicitly grant authority to the attorney general to make the determination the court said he lacked the authority to make, or they can explicitly make it illegal to prescribe drugs for assisted suicide. But here's what bothers me more about this...
While it's true that the state of Oregon argued solely on the basis of statutory interpretation here, I think it's important to understand why they did so and I would argue it's primarily because of the Raich decision. They had a very strong constitutional argument to make based on separation of powers and the commerce clause, but the Raich decision told them that the court was not willing to accept that argument. I think the court should have accepted that argument, but they clearly aren't willing to go that far. Even Scalia, who claims to be an originalist, admitted in his dissent here that there is no Constitutional authority for the policy, but given his opinion in Raich, he clearly is not willing to overturn so much precedent in order to conform with the original meaning of the text.