Death With Dignity–Part II

Justice Kennedy’s opinion affirmed Oregon’s statute, and overturned Attorney General Ashcroft’s interpretive rule claiming that the use of controlled substances to assist suicide is not a medical practice and therefore unlawful under the CSA (Controlled Substances Act). Technically, the case involved whether the Attorney General’s interpretation should be accorded any deference; here, the Court concluded “no.”

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But I have to think that Oregon is very, very lucky regarding the timing of the case.


Justice O’Connor was still on the Court–her “last hurrah” so to speak. We won’t know for certain until someone decides to talk, but Kennedy was clearly wavering at oral argument (worrying about the possible consequences of each outcome) while O’Connor seemed a safe vote for Oregon given her aggressive questioning of the U.S. (esp. in suggesting that the regulation of medicine is a “traditional state power”). Joining the majority allowed Kennedy to vindicate state’s rights and individual autonomy in one fell swoop, and to have the most influence on an exceedingly important opinion. The 6-3 outcome may mask complicated positions, and I have to believe that Justice Alito would have inclined toward the Government’s position and perhaps moved Kennedy in that direction.

Just as important, the general climate was highly conducive to the Court seeing this as a serious separation of powers case. In other words, this was another case involving a power grab by the Executive Branch a la Hamdi v. Rumsfeld. The breaking news about secret spying surely didn’t help. The opinion says that “the Attorney General claims extraordinary authority,” effectively arguing that the statute “delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality.” Hello, slipperly slope!

Once a majority of the Justices framed the issue this way, the rest of the administrative rule-making analysis and statutory interpretation fell into place. The goal was to permit multiple layers of involvement in the regulatory regime: The CSA delegated “divided” authority among different executive agencies, it expressly contemplated state regulation of the practice of medicine, the phrase “legimitate medical purpose” could reasonably include death-inducing behavior by physicians, and so on.

Ever the proponent of the exegetical approach, Justice Scalia is willing to read the word “control” broadly to include all processes involved in the manufacture and distribution of drugs, rather than as the majority reads it, namely that it is narrowly addressed to recreational use and distribution of illicit drugs. The new Chief, John Roberts, experiences a mindmeld moment with Scalia on this matter, and he joins the opinion.

Scalia’s most revealing comment comes near the end of his dissent, in which he admits that he has no trouble with the attempt to impose “public morality” on a national scale–apparently even when it is imposed by the executive alone.

An interesting question is why Oregon lost Justice Thomas, who is moved to write separately. Remember, Thomas dissented in Gonzalez v. Raich, in which the Court struck down California’s medical marijuana law as interfering with the CSA’s regime. The state had an extremely difficult argument because Congress has specifically enacted a law listing marijuana as a schedule I substance. By contrast, the Republican Congress had tried to ban assisted suicide and failed to muster enough votes before Ashcroft issued the interpretive rule.

There are three possible explanations for Justice Thomas’ sudden coolness toward federalism. First, he really does believe that Raich decided every possible federal-state question that could arise involving the CSA. I think this is unlikely–not even Scalia would go that far in his devotion to stare decisis–and Justice Thomas has in other federalism cases shown a willingness to narrowly construe inconvenient precedent. Second, he does not particularly believe that life-ending decisions are the kinds of things that implicate core state powers. A third possibility is that he is personally opposed to suicide of any kind, and his willingness to permit the cultivation of national moral standards trumps his sympathy for state sovereignty. In my view, the answer involves some combination of explanations two and three.

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10 Responses

  1. Will says:

    As one who considers himself a staunch conservative and federalism proponent, I am a bit troubled by the dissenters’ willingness to abandon disciplined federalism principles for closely held moral beliefs. At least this is what looks like to me.

  2. mark says:

    We can debate whether this decision hinges on precedent viz Raisch or a more granular analysis of the CSA. The recognition of “inalienable rights” is fundamental to this nation. It is “self-evident” that no law can be written to prevent someone from

    ending their own life. What the state can do, however, is to coerce the desperate and dying, or worse, a loved-one, into ending their suffering with a bullit to the brain.

  3. SCOTUSblog says:

    Blog Round-Up – Wednesday, January 18th

    In nomination news: Here is Professor Bainbridge with a post on why the Harriet Miers fight was worth it. Here the Washington Post has transcripts of the Alito hearings. Here is Sentencing Law & Policy with a post on the…

  4. Death Watch

    The U.S. Supreme Court has just struck down a federal effort to stop legal assisted suicide in Oregon. Oregonians have twice approved the law for effect in their state, but then-Attorney General John Ashcroft tried to circumvent the law by interpreti…

  5. Chris says:

    I think there is a plausible option 4. Thomas, seeing that the majority was solidly on the side of the state, decided to use the dissent to chastise the other justices on the inconsistency of their ruling.

  6. ReidBlog says:

    Roberts watch

    It remains to be seen whether I was completely suckered by John Roberts’ charm and intelligence during his confirmation hearings. But there are interesting signs…

  7. washerdreyer says:

    Why wouldn’t this proposed option four be as well served by a concurrence?

  8. Chris says:

    Honestly, I don’t know. Perhaps he felt a dissent would have a greater impact?

    It’s speculation on my part and I don’t know the inner workings of the court well enough to even defend the argument.

  9. Counting Justices

    [Jurisprudence] I am reading Gonzales v. Oregon today, like everyone else, and I am reading what people have to say about the decision. I came across a post by Robert Tsai on Concurring Opinions, in which Tsai is counting justices:

    But I have to thin…

  10. Rodgerlodger says:

    don’t see connection with CA medical marijuana case and Oregon….no issue of statutory interpretation in former — issue was Commerce Clause. Latter, no constitutional issue, just what statute meant. Apples and oranges, getting stoned and committing suicide (not the same thing)