Saturday, January 21, 2006
Stare Decisis Bites Back
I believe that legalizing physician-assisted suicide is a mistake. I also believe that having federal courts and bureaucrats decide the issue is a mistake. This is a question that should be debated by the people and their representatives.
That's why the Supreme Court was right this week to uphold Oregon's assisted-suicide law -- a law I would have voted against had I been an Oregon citizen, and would vote to repeal.
In this case, I found myself in the odd position of agreeing with the sentiments expressed by Justice Antonin Scalia on the underlying issue, but bewildered by his willingness to impose his view (and mine) by judicial fiat.
There is such a thing as doing the right thing for the wrong reasons. Gonzalez v. Oregon demonstrates that maxim in spades. I would have vastly preferred the majority to have paid closer attention to Justice Thomas, the only one on the court who got it right:
The majority's newfound understanding of the CSA as a statute of limited reach is all the more puzzling because it rests upon constitutional principles that the majority of the Court rejected in Raich. Notwithstanding the States' " 'traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens,' ", the Raich majority concluded that the CSA applied to the intrastate possession of marijuana for medicinal purposes authorized by California law because "Congress could have rationally" concluded that such an application was necessary to the regulation of the "larger interstate marijuana market." Here, by contrast, the majority's restrictive interpretation of the CSA is based in no small part on "the structure and limitations of federalism, which allow the States ' "great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons." According to the majority, these "background principles of our federal system ... belie the notion that Congress would use ... an obscure grant of authority to regulate areas traditionally supervised by the States' police power."
Like so many outcome-oriented liberals, Mr. Dionne is so fixated on engineeering a predetermined outcome that he can't understand that actions have consequences. And so he rails against what he doesn't understand, oblivious to the irony of his position:
But Scalia, Roberts and Thomas would claim the right to impose this view on Oregon. As Scalia himself writes, the legitimacy of physician-assisted suicide ``ultimately rests, not on 'science' or 'medicine,' but on a naked value judgement.'' Yes, and why should Ashcroft and the Bush administration be able to cast aside the decision of Oregon's voters and insist upon their own ``naked value judgement"? Isn't it strange that those who typically advocate for states' rights -- including, for reasons I respect, on the abortion question -- then turn around and endorse the most expansive use of federal power to advance their own preferences?
By contrast to the conservative judicial activism of the dissenters, Kennedy's majority decision is a model of judicial modesty. The court's majority takes a careful look at the language of the Controlled Substances Act. It finds no warrant for what it sees as the ``unrestrained'' power that Ashcroft was claiming in using the law to prohibit doctors from prescribing drugs in assisted-suicide cases. The majority does not try to judge the question of assisted suicide. It would keep open the public's right to debate this genuinely difficult issue.
The problem with this argument is that the Court should have found a clear "warrant" for Ashcroft's authority: the Holy of Holies about which we have heard so much during the Roberts and Alito hearings - stare decisis, or the precedent set by Raich only seven months ago. In that case, the Court found it was rational for Congress to ban personal use of marijuana occurring wholly within the state of California because it had a 'reasonable basis' for believing that application was necessary to control interstate regulation of the interstate pot market. Now the same Court admits the Attorney General is "reasonable" in finding assisted suicide "not a legitimate medical procedure" (so the federal government again has a rational interest), yet inexplicably contradicts its own precedent and decides the very same law cannot be used to ban use of morpheine (an addictive drug that is bought and sold on the interstate market). Does this make any sense? Justice Thomas did not think so.
So why did he side with the federal government, despite his well-known federalist sympathies and his obvious ire with the hypocrisy of his fellow jurists?
The answer is something EJ Dionne ought to applaud. He followed precedent; as it so happened, a precedent he personally disagrees with. But the State of Oregon made no argument against the precedent set by Raich, and so as much as he dislikes that decision, he was presented no argument for overturning it in his dissent. Hardly a case of "conservative judicial activism", is it?
The great irony, as Thomas points out, is that in this case it was only liberal judicial activism and the refusal of the majority to follow their own precedent that allowed liberals to escape the logical consequences of the Raich decision:
I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (Thomas, J., dissenting); cf. Whitman, supra, at 486-487 (Thomas, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). 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. Accordingly, I respectfully dissent.
Mr. Dionne might do well to reflect upon just who was practicing judicial activism here. This entire episode illustrates why I have argued many times that conservative judicial activism is, by and large, a myth.
10 Comments:
By 
TigerHawk, at
Sat Jan 21, 11:05:00 AM:
Great post, Cass. Thomas nailed 'em in his dissent. The question, though, is whether Thomas will extend this point of view and vote to uphold Roe. Without having researched the matter, my gut tells me that he has not been so deferential to stare decisis in that context. How has he voted in the post-Roe abortion cases?
By Cassandra, at
Sat Jan 21, 12:18:00 PM:
I'm not up on his history either, frankly. He is not reputed to be inclined to defer to precedent, so my gut tells me you're right. I wish I were better educated on this subject. It's always fascinatiing to speculate, but I always feel a bit tentative doing so when there is so much I don't know.
But that's half the fun, I guess.
By Lanky_Bastard, at
Sat Jan 21, 01:06:00 PM:
Ineresting case. A cynical mind might suspect Thomas made up his mind first, and then used precedent to justify it. Funny that he made a rare invocation of precedence on this particular case.
Conservatives and liberals both argue either precedence or constitutional purity when it favors them. And that's because we have politicians nominating advocates to the court rather than impartial arbiters of law. It's an unstable system, and the best way out would be a panel of judges with no axes to grind. However, given the nature of politics, what president would dare nominate even one true moderate? And that's part of why we have bad law*.
(*sidenote: first blame should always go to lawmakers)
By Cassandra, at
Sat Jan 21, 03:17:00 PM:
You're missing the point.
The question, however, waa originally whether Congress had the authority under the Constitution
In Raich, the majority decided it did. In Oregon (a mere 7 months later), the majority turned around and said it did not.
And Lanky Bastard, Thomas explains why he followed the precedent in the footnotes to his dissent (in my linked post). It was all laid out very clearly.
By honestpartisan, at
Sat Jan 21, 03:51:00 PM:
The issues in Raich and Gonzalez were actually not the same issues as you portray them. In Raich, there was no dispute that Congress intended to regulate marijuana use. The issue was whether the commerce clause of Article 1 of the Constitution gave Congress the jurisdiction to pass on this question, and the Court found that it did (in accordance with an old precedent, Wickard v. Fillburn).
The issue in Gonzalez v. Oregon was not Congressional authority. The issue was Congressional intention. Congress sought to reconcile street trade of prescription drugs with a legitimate interest in having doctors be able to prescribe drugs. Congress did this by empowering the Attorney General to sanction doctors that passed off prescription drugs to drug dealers. The issue in Gonzalez v. Oregon was whether this federal statute encompassed doctors who prescribed barbituates to allow assisted suicide pursuant to Oregon's law.
Particularly apropos to this analysis is the fact that John Ashcroft, outraged at Oregon's assisted suicide statute, tried to get Congress to amend the Controlled Substances Act when he was a senator to penalize doctors and failed. What he couldn't achieve legislatively, he tried to accomplish adminsitratively when he became the Attorney General.
To sum up, if Congress wanted to regulate doctors who prescribed drugs to assist in suicides, they have the jurisdiction to do so (Raich v. Ashcroft), but under various canons of statutory construction, they did not intend to do so in this case (Gonzalez v. Oregon). No inconsistency.
By Cassandra, at
Sat Jan 21, 08:36:00 PM:
Perhaps you can explain to me how, exactly, the Commerce Clause touches on the wholly intrastate growth and consumption of marijuana.
Thank you. I suppose the answer will be Wickard, but it is not a very good answer. Precedent is not sacrosanct if it is wrong.
By Cassandra, at
Sat Jan 21, 08:42:00 PM:
I'm quite willing to be persuaded that I am wrong.
Go ahead: bring on the counter-arguments :) This could get interesting.
By honestpartisan, at
Mon Jan 23, 05:27:00 PM:
You're now raising a different argument. Earlier, your position was that the Court's ruling in Raich was inconsistent with its ruling in Gonzalez. Now you're questioning the basis of Raich. I'm happy to engage this issue, but I just wanted to note that it's a change from what was posted earlier.
By 
, at
Mon Jan 23, 07:08:00 PM:
Cassandra, I think honest_partisan has a good take on the differences here. The reason the commerce clause was found to apply in Raich is because the court found compelling the argument that interstate commerce would be affected by intrastate (CA) legalization (as they stated in the quote you wrote).
I'd also like to note that stare decisis is a poorly defined concept that requires further "settling" than a single, seven month-old precedent.
Funny how we can look at the same dissents, and you see a complete refutation of the "myth" of conservative judicial activism, whereas I see a crystal clear example of conservative judicial activism covered in hypocrisy sauce.
By Cassandra, at
Tue Jan 24, 03:05:00 PM:
Earlier, your position was that the Court's ruling in Raich was inconsistent with its ruling in Gonzalez. Now you're questioning the basis of Raich.
Is there any reason I can't do both?
At the time I didn't particularly like Raich, so it's not surprising that I still don't like it. I like it even less when, having foisted both Raich and Kelo on us in the same year, SCOTUS now appears to be turning their backs on their own reasoning :)
And Bill, I suppose you could take my last sentence several ways.
It wasn't meant as a claim that this one case proves the point entirely (especially as I'd been arguing this point long before this case was decided - that would make it rather a stretch unless I were Miss Cleo). It was more of a "this is just one more piece of evidence" type of thing.
It is very hard to make a principled argument that growing pot in your backyard for commercial use touches interstate commerce. Pot, last time I checked, was still not traded on the legal interstate market. In what way, then, are the *legitimate* commercial interests of the States affected? What compelling interest is touched?
Yeah, I thought so. IOW, the majority found a "compelling interest" because it suited them to find one. *That* is why I question the basis of Raich - because it makes no sense.
Morpheine, on the otter heiny, is bought and sold in the INTERstate market. It *clearly* touches interstate commerce. Yet the Court did not invoke the commerce clause HERE to stretch creative applications of CSA ... hmmmm.
Try looking at it this way:
1. Potential harm: In Raich, the potential harm the federal government is trying to prevent via the CSA is slight, since pot is not terribly addictive... yet SCOTUS upholds the ban.
In Oregon, the potential harm the federal government is trying to prevent via the CSA is great since morpheine is highly addictive yet SCOTUS strikes down the ban
YEP: MAKES SENSE TO ME....
2. Connection to commerce:
In Raich, pot is grown and used wholly within California and never enters the stream of interstate commerce, yet SCOTUS upholds the ban
In Oregon, morpheine is traded on the interstate market, yet SCOTUS sees no commerce clause interest???
Right.
I sense a certain lack of consistency.
