"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Wednesday, October 05, 2005

Judicial Activism With Dignity 

I am strongly opposed to the notion of physician-assisted suicide. It's not that I think that the terminally ill should be denied the right to take their own lives if they choose to do so - hell, I think anyone should have that right, legally at least - it's just that I don't think that doctors should be part of the process. I think it fundamentally corrupts the role of physician as healer, and furthermore it scares the hell out of me, especially given how beholden to the insurance industry - who have a powerful economic incentive to reduce the number of terminally ill patients - America's doctors have become.

So obviously, were I a citizen of Oregon, I would have voted against that state's "Death With Dignity" initiative. And just as obviously, I would have been on the losing side - the initiative passed with about 60% of the vote. (For more background, including a pretty good defense of the initiative on policy grounds, see The American Street.) That's democracy, isn't it? I have a right to say my piece, as passionately and as eloquently as I can manage, and the majority of my fellow citizens then have the right to ignore me. And until I am elevated to the position of "All-Powerful Master of Space, Time, and Dimension," there isn't a damned thing I can do about it.

But then again, I'm not a Supreme Court Justice.

Today the SCOTUS heard oral arguments in the case of Gonzales v. Oregon, in which the federal government is challenging Oregon's statute on the grounds that federal controlled substances law trumps state law, and so the feds may constitutionally prohibit doctors from using drugs to comply with their patients' wishes - wishes which are fully sanctioned by the state.

So now we get to see just how seriously those Justices elevated by the ruling party take all that palaver about federalism and the evils of judicial activism, because while many (including myself) may believe that the Oregon law is wrong, it takes some real sophistry to argue that it is constitutionally infirm. Regulation of the medical profession is exactly the kind of thing that is a traditional function of state law (or, at least, it was, until the feds got heavily into regulating controlled substances). Unless one is willing to stretch the Commerce Clause well past its breaking point - and the Court, unfortunately, has demonstrated time and again that it is more than willing to do just that - there is absolutely no Article I authority for Congress to step in; thus, it follows that there is no Article II authority for the executive to get involved, either.

Beyond the federalism issues, however, this is a clear-cut example of "legislating from the bench." A solid majority of Oregon's voters approved this initiative, and it is the height of judicial activism for the federal courts to overturn their wishes.

So, how are the Justices going to rule? I predict that Oregon's law will be struck down. I would have predicted such beforehand, but having read a bit about how the questioning went today at oral argument, I am even more convinced. Justice Antonin "Fat Tony" Scalia, who abhors judicial activism and [heart]'s states' rights, was described as "skeptical of the state’s position. 'I think that assisted suicide would have been just as unthinkable at the time this (the federal law) was enacted as prescribing cocaine for recreational use,' Scalia said." (What the hell that comment was supposed to mean is left unexplained.) And brand-spankin'-new conservative poster boy John "Dread Pirate" Roberts? Take a look:
Newly installed Chief Justice John Roberts on Wednesday sharply questioned a lawyer arguing to preserve Oregon’s physician-assisted suicide law, noting the federal government’s tough regulation of addictive drugs.

The 50-year-old Roberts, hearing his first major oral argument since succeeding William H. Rehnquist at the helm of the court, seemed skeptical of the Oregon law.

At the outset, Roberts laid a barrage of questions on Oregon Senior Assistant Attorney General Robert Atkinson before he could finish his first sentence.

Roberts asked whether such state laws would undermine the effectiveness and uniformity of the federal Controlled Substances Act, as the Bush administration argues.

So much for his famous humility, I guess.

On the other hand, Sandra "Lame Duck" O'Connor (who likely will be gone before the case gets decided, so apparently was participating today just for fun) seems to actually have understood what a charade the whole affair is:
Justice Sandra Day O’Connor immediately challenged Clement, asking if the federal act also prevented doctors from prescribing drugs for lethal injections of death row inmates.

“The practice of medicine by physicians is an area traditionally regulated by the states, it is not?” O’Connor asked [U.S. Solicitor General Paul] Clement.

So the likely outcome of all this is that Oregon's duly enacted and constitutionally robust statute will end up in the dustbin of history. Although I agree with that result on policy grounds, I cannot accept the horrible twisting of constitutional principles necessary to get there. If I am right, and the Court sides with the federal government's position, it can only be so if the Justices have embraced the greater evil.




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