Assisted Suicide Stays Alive

By a 6-3 vote, the Supreme Court has ruled that federal regulatory authority can't trump Oregon's law permitting assisted suicide. You can read the full opinion here [PDF]. Notable though not surprising is that the most conservative justices, with the stronger nominal commitment to federalism, were the dissenters.

Comments

[Captain Holly]

It would be nice if the Supreme Court would try to be consistent.

How is it okay for Oregon doctors to prescribe lethal doses of opiates, and yet send California doctors to jail for prescribing therapeutic doses of pot?

[AC]

I'll have to read Thomas' dissent. I find it odd he would dissent in Raich but not support Oregon here.

[James Feldman]

Well, I suppose now we are seeing what we are getting in Justice Roberts. Oh boy great.

Anyone doubt that this would have been 5-4 had Alito been on the court?

[Matt L]

How is it okay for Oregon doctors to prescribe lethal doses of opiates, and yet send California doctors to jail for prescribing therapeutic doses of pot?

That seems to be the question Thomas is asking in his dissent.

[Jaybird]

Holly, the people who are taking lethal doses of opiates are not doing so in order to feel good, nor will their doing so corrupt children, plus, on top of that, they'll be going to hell to end up in the grove of the suicides.

People who smoke pot might still drink from the water of life and be saved.

[Warren]

the Supreme Court has ruled that federal regulatory authority can't trump Oregon's law permitting assisted suicide.

You're kidding =8o

the most conservative justices, with the stronger nominal commitment to federalism, were the dissenters.

Ahh, Now I understand

[Mike]

While I agree with the decision, I love Thomas's dissent. He exposes a clear hypocrisy in the Supreme Court, where they decided in the Raich case that marijuana grown and consumed in California was interstate commerce and therefore the controlled substances act applied, but in this case it does not apply. He is without a doubt the only justice on SCOTUS worth keeping his job.

[Mike]

While I agree with the decision, I love Thomas's dissent. He exposes a clear hypocrisy in the Supreme Court, where they decided in the Raich case that marijuana grown and consumed in California was interstate commerce and therefore the controlled substances act applied, but in this case it does not apply. He is without a doubt the only justice on SCOTUS worth keeping his job.

[Stretch]

Anyone doubt that this would have been 5-4 had Alito been on the court?

No, but 5 of the 6 in the majority here were also the majority in the Raich and Kelo decisions, so it's unclear to me whether Roberts or Alito could have flipped those decisions.

Would you trade this one for the other two?

[James Feldman]

It does seem to be the question that Thomas is asking in his dissent, and while I actually agree with his logic, the problem is that Raich was wrongly decided, not that this decision is incorrect. Thomas seems to have altered his position based on the idea that following the Raich precedent requires it, although I'm rather baffled as to why he considers a case where he dissented as cause for dissenting from this ruling.

[Warren]

the Supreme Court has ruled that federal regulatory authority can't trump Oregon's law permitting assisted suicide.

You're kidding =8o

the most conservative justices, with the stronger nominal commitment to federalism, were the dissenters.

Ahh, Now I understand

[James Feldman]

Stretch - I don't think it works that way. I suppose I would probably not make the trade, since Raich was a case which would not have ended the drug war even if it had been differently decided, and Kelo is busy being eviscerated by the legislature. In the end, right to die is probably a more crucial and far-reaching issue than medical marijuana, particularly since the illegality of marijuana is by itself highly objectionable. As for Kelo, I just don't think that decision will last very long at all.

[Debra]

actually Scalia said that the death penalty by lethal injection is was illegal. I'm sure he didn't mean it, but he wrote something that should be able to be used in future cases.

[amazingdrx]

This highlights the fact that ideological tilt continually overwhelms the respect for legal principle for neoconservatives.

That is the symptom that indicates that many who claim to be libertarian are really neoconservative.

Civil liberatarians are the left side of libertarians. And noe neocons have taken over the right wing of libertarians.

[Debra]

should have been is illegal. don't know where the extra was came in, sorry.

[Julian Sanchez]

"I'm rather baffled as to why he considers a case where he dissented as cause for dissenting from this ruling."

Because, having lost in that case, he considers the majority ruling binding precedent, whether or not he agreed with it?

[Mr. F. Le Mur]

A friend recently had his 15 year-old dog put down, and the vet comforted him by saying "It'll let him die with some dignity."

Too bad American humans don't have that same right; having to get permission from one of the State's agents doesn't cut it. (As usual, what the nine government lawyers decided, or the gyrations they used to make the decision, is completely irrelevant to me.)

[James Feldman]

Julian -

I see the logic in that, except that it would be inconsistent with many of his previous rulings. Particularly since Thomas has often dissented from binding precedent that has been challenged without success on multiple occasions preceeding his tenure on the court, it doesn't follow that he would consider himself bound in this circumstance.

[Mike]

I think Thomas used the dissent to show the hypocrisy in the interpretation of the Constitution by most of SCOTUS, nothing more.

[Warren]

Nothing new here. Thomas, like every other Supreme Court Justice, rules according to the "whatever the fuck I want" doctrine, and then regurgitates meaningless pretext in his decisions. His propensity to use Originalist and Textualist arguments when it suits him is of no consequence.

[The wed RINO]

I think Thomas used the dissent to show the hypocrisy in the interpretation of the Constitution by most of SCOTUS, nothing more.

You mean that, had Raich been decided the way correctly he'd have voted with the majority?

[Mike]

You mean that, had Raich been decided the way correctly he'd have voted with the majority?

Yes, I think he would have.

[anon2]

Thomas's dissent is only four pages (with big margins), so it's real easy for anyone to read it himself. However, his second footnote is worth reproducing for people who don't want to download the PDF:

"Notably, respondents have not seriously pressed a constitutional claim here, conceding at oral argument that their ``point is not necessarily that [the CSA] would be unconstitutional.'' Tr. of Oral Arg. 44. In any event, to the extent respondents do present a constitutional claim, they do so solely within the framework of Raich. Framed in this manner, the claim must fail. The respondents in Raich were ``local growers and users of state-authorized, medical marijuana,'' who stood ``outside the interstate drug market'' and possessed `` `medicinal marijuana . . . not intended for . . . the stream of commerce.' '' 545U. S., at ___, ___, (slip op., at 5, 16) (THOMAS, J., dissenting). Here, by contrast, the respondent-physicians are active participants in the interstate controlled substances market, and the drugs they prescribe for assisting suicide have likely traveled in interstate commerce. If the respondents in Raich could not sustain a constitutional claim, then a fortiori respondents here cannot sustain one. Respondents' acceptance of Raich forecloses their constitutional challenge.

I don't know enough about the working of the Supreme Court to know, so I'll ask other people here. What's the chance that CT knew that the vote would be decided the right way and dissented here just to make a point?

[Kid Handsome]

If the Oregon law called for death by hammer to the head, this wouldn't even be an issue. Instead, Scalia (the one who is the most hypocritcal in his "whatever the fuck I want" pattern of making decisions) was frightened by the word "drug."

[shecky]

I don't get why CT would dissent just to make a point. Can he not make a meaningful point by ruling correctly?

[James Feldman]

Does anyone have a link to Thomas' dissent in Raich handy?

[anon2]

I found Thomas's dissent by Googling: Thomas dissent Raich.

Shecky, increased contrast. He's saying, quite loudly, "You can't have it both ways."

[Zubon]

Does anyone have a link to Thomas' dissent in Raich handy?

http://a257.g.akamaitech.net/7/257/2422/06jun20051130/www.supremecourtus.gov/opinions/04pdf/03-1454.pdf

[Warren]

I have sometimes said that Thomas is right in dissent. Here the court gets it right, and Thomas is still right in dissent. Got to love a justice that can keep an opinion to a thousand words.

Does anyone know if a justice has ever dissented just so he could bitch-slap the rest of the court over a previous case before. Fucking brilliant.

[business babe]

I'm confused about this whole topic. If people don't want to live...why would they go to a doctor? Doctor's are there to help you get better. It seems like this is not really a doctor's job. And, I don't thnk the issue is whether or not people should be able to choose if they want to live or not-they should definitely be able to choose that. What I fear is that people will take these drugs and feed them to others, or psycho doctors will prescribe them when that's not what the patient wanted.

[MikeP]

What's the chance that CT knew that the vote would be decided the right way and dissented here just to make a point?

100%

It's SOP for the justices to confer to figure out what they're all thinking, to try to convince each other of their respective positions, and to consolidate the concurrence and dissent into as few written opinions as possible.

[James Feldman]

Thanks everyone.

[AC]

If the respondents in Raich could not sustain a constitutional claim, then a fortiori respondents here cannot sustain one. Respondents' acceptance of Raich forecloses their constitutional challenge.

I guess if I'm ever before the Supremes, I'll be sure to challenge the constitutionality of every statute at hand.

[henry]

Hmmmm...3 devout Catholics, 3 votes--what a coincidence.

File this one away the next you hear all those bullshit arguments about "unfair" "religious tests" when nominees are asked how their religious beliefs might impact their rulings.

[Cathy Young]

Sure, the so-called strict constructionalists turned out to be activist judges. But the judges on the other side are just as bad - their robes make them look fat.

[happyjuggler0]

This ruling makes crystal clear that the Senate and the media have the wrong perspective on Supreme Court nominees. They are trying to decide if someone will rule in favor of liberal issues or in favor of conservative issues. What they should be trying to find are justices that will rule in favor of the law created by the elected branches of government, instead of what said justices want the law to be.

Anyone care to guess when, if ever, this will happen?

[Mike]

And to think that Dubya says CT is a "model justice". If only he could read...

[Brett]

First, what's with those margins in the opinion? Are they all typed up like a Brazilian cut?

As pointed our earlier, CT is not one to fret too much about precedent.

I don't get why CT would dissent just to make a point. Can he not make a meaningful point by ruling correctly?

Could CT have effectively pointed out the court's hypocrisy in the majority opinion if he was not authoring it?

I'm certainly no expert on SCOTUS issues, but it sounds as if Warren is on to something. More from CT's dissent:

"While the scope of the CSA and the Attorney General?s power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court?s Commerce Clause and separation-of-powers jurisprudence.

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".?"

[Mike]

"If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything?and the Federal Government is no longer one of limited and enumerated powers."
--Clarence Thomas in Raich

I love this guy.

[Isaac Bartram]

Could CT have effectively pointed out the court's hypocrisy in the majority opinion if he was not authoring it?

My impression is that Thomas has frequently written separate opinions in both dissent from and concurrence with the majority opinion.

He did in the Texas sodomy case dissent to express his disagreement with Scalia. He also did it in concurrence with a Haitian refugee case back in the early 90s where he wrote that while the Administration's policy of detaining and deporting haitians was legal it was nevertheless immoral.

Thomas seems to have a great respect for precedent. I'm not sure I find it that appealing. But I have to respect the fact that for him the law and his personal wishes or preferred outcomes are two different things. He often tries to make this plain.

[Isaac Bartram]

Could CT have effectively pointed out the court's hypocrisy in the majority opinion if he was not authoring it?

My impression is that Thomas has frequently written separate opinions in both dissent from and concurrence with the majority opinion.

He did in the Texas sodomy case dissent to express his disagreement with Scalia. He also did it in concurrence with a Haitian refugee case back in the early 90s where he wrote that while the Administration's policy of detaining and deporting haitians was legal it was nevertheless immoral.

Thomas seems to have a great respect for precedent. I'm not sure I find it that appealing. But I have to respect the fact that for him the law and his personal wishes or preferred outcomes are two different things. He often tries to make this plain.

[Isaac Bartram]

Curses. Sorry for the double post.

[The wed RINO]

Why didn't Thomas write a concurring opinion, if he was simply trying to point out the inconsistency of the majority?

[Isaac Bartram]

The wed RINO

I'm trying to puzzle that one out myself. If he agreed with the majority but simply disagreed with their reasoning or motives he could have written a separate concurring opinion and still delivered the same bitch-slap (if that's what it was).

[Jennifer]

If people don't want to live...why would they go to a doctor? Doctor's are there to help you get better. It seems like this is not really a doctor's job. And, I don't thnk the issue is whether or not people should be able to choose if they want to live or not-they should definitely be able to choose that. What I fear is that people will take these drugs and feed them to others, or psycho doctors will prescribe them when that's not what the patient wanted.

Why would people go to a doctor? For the same reason that a person who wants to humanely put down a 15-year-old dog will take him to a vet rather than shoot him or toss him off of a high building.

As for your fears about psycho doctors--that can happen anyway. A friend of mine has a severe allergy to penicillin--if you give her some, she could easily die. And the chance of a psycho doctor deliberately giving her penicillin is the same as the chance of a psycho doctor giving her a painless euthanasia drug whenshe doesn't want it. For that matter, if you go to the hospital what's to stop a psycho doctor from deliberately giving you an overdose of anything that might kill you?

Same thing for your fear that people will take these drugs and give them to others--that can happen with any form of medication.

[Peter Bagge]

From deathwithdignity.org:

"When the Supreme Court last weighed in on the matter, in 1997, Judge Roberts discussed the cases in a television talk show. The high court had just decided to protect prohibitions on assisted suicide in Washington and New York states. Judge Roberts, at the time a lawyer in private practice, defended the decision to maintain the restrictions -- invoking states' rights, not morality."

What a hypoctrite!

[Peter Bagge]

As for Thomas' flip-flop: Does the "precedent" set by last year's horrendous Raich decision -- which he wisely voted against -- actually outweigh his formally consistent understanding of states' rights in his mind? And if so, how? Why?

[peter Bagge]

"What's the chance that CT knew that the vote would be decided the right way and dissented here just to make a point?

100%"

I guess I got my answer before I even posted, though at the risk of sounding rather unsofisticated, voting against your true opinions just to make a "bitch slap" stikes me as both immature and pointless.

[Brett]

Isaac,

Thomas seems to have a great respect for precedent.

I thought that Thomas was known to argue against stare decisis more than most justices. Kelo comes to mind, although I might be confusing that with another decision.

[Jadagul]

As to why Thomas wrote his opinion bound by precedent in Raich: My read is that he feels like Raich's result was stipulated by both parties. From the footnote anon2 quoted:

to the extent respondents do present a constitutional claim, they do so solely within the framework of Raich... Respondents' acceptance of Raich forecloses their constitutional challenge. [emphasis mine]

He seems to say that the respondents have stipulated for this argument that Raich is correct, and thus relieved him of the burded of deciding that case again. If you accept Raich, as Thomas claims both parties wished him to, his decision seems pretty sound. I take it that if they'd asked him to reconsider Raich, he might well have.

[The wed RINO]

Another question...

How does Thomas' dissent in Raich and now this square with his signing onto Scalia's dissent? (Which I haven't read boo on.)

[FatDrunkAndStupid]

Scalia's dissent just deals with the regulatory interpretation issue. If one accepts Raich (as Scalia did), it is probably the more sound decision. Thomas signing of on it is completely consistent with the message he was trying to send.

[Isaac Bartram]

I thought that Thomas was known to argue against stare decisis more than most justices. Kelo comes to mind, although I might be confusing that with another decision.

I just seem to recall that in an awful lot of his opinions he writes something like "I really don't like this law, but it is not unconstitutional and myreasoning is this ___". Often the reason seems to be "It is constitutional because the Court found this way in ___, and while I disagree with their finding then, it takes more than my feelings for me to overturn it."

What disturbs me about this opinion is that I can't get a handle on what exactly he's saying. I'm afraid I suspect that he (like Scalia) disapproves of Physician Assisted Suicide on moral grounds as is prepared to see it criminalized.

I mean, for crying out loud, why not join the majority and deliver the bitch-slap in a separate concurring opinion.

It is my impression that in Kelo he argued that precedent did not allow this taking. Although I may have gotten that wrong.