Hallucinogenic Tea with Chief Justice Roberts
Earlier, I posted on the interesting position taken by the new Chief Justice on the Gonzalez v. Oregon case, which involved the Controlled Substances Act. There, he joined Justices Scalia and Thomas in a reading of the federal law that would have effectively ended Oregon’s experiment with physician assisted suicide. Now, in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal, he authors a major opinion reading the Controlled Substances Act (CSA) narrowly to allow a church to import hallucinogenic tea. What gives?
In the Oregon case, the majority rejected a broad reading of the CSA so that it was compatible with Oregon’s Death With Dignity Act. I call this technique of reading statutes narrowly to permit subnational disagreement “interstitial empowerment.” By contrast, in the hallucinogenic tea case, he brushed aside the argument that Congress’ mention of peyote was meant to be exclusive–therefore licensing judicial creativity in spelling out future exemptions to the CSA based on religious-observance grounds. Justice Roberts devastates the federal goverment’s arguments about the need for uniform federal law: “it echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.”
So, why was Justice Roberts unwilling to interstitially empower ailing individuals but adamant about doing so on behalf of this church? Why a stickler about uniformity in one case, only to poo-poo it in the next one?
One explanation is that he’s more morally comfortable with a religious group’s rather unconventional practices involving drugs than he is with sick people killing themselves with drugs. In other words, he is outcome-determinative because of his moral upbringing. This would be the take of the critical legal scholar or perhaps the attitudinal approach popular in one wing of political science. There is some basis for this account: he signs Scalia’s dissent in Gonzalez in which Scalia goes out of his way to reaffirm the national government’s power to cultivate national moral standards. Still, I haven’t seen enough to say that his person religious views are driving his interpretive decisions.
Another possibility is that he sees an individual right more clearly and directly at stake here–namely free exercise, well established in the case law if disfigured by decisions like Employment Div. v. Smith (ironically, another Oregon case), whereas there is no right to die except in a hypothetical extreme case. That is to say, his conception of rights tips the balance of interests. And yet Roberts seems more interested in rights than in powers.
The third possibility, and I think the most plausible one, is that he’s a nationalist through-and-through (and only a part-time supporter of state’s rights if it doesn’t implicate broad notions of federal power). The enactment of RFRA makes all the difference in the world, and he’s willing to narrow the CSA by reading the two synthetically in ways that favor RFRA rather than the CSA. Where others see a certain amount of confusion in federal law as a result, he sees elegance. When, however, the state seeks a close reading of federal law, it pushes his nationalist button hard: he sees disarray, diffusion of federal interests, and a general nightmare.
There is some dovetail with explanation two: to the extent that no federal right to suicide exists, the strong federal interest weighed in favor of the U.S. position in that case; to the extent that religious exercise is a federal interest, the First Amendment plus RFRA equals two federal interests. And, of course, since every judge is a product of his environment, one would expect that he would appreciate federal interests more viscerally given his career.
One nagging difficulty with this account is that as the Oregon case was finally framed, it should have appealed to Roberts’ nationalist impulses: the majority saw a separation of powers issue of grave importance if the Attorney General could, with a stroke of the pen, rewrite federal law. Yet he would not budge. My best rough explanation is this: with Roberts, national interests beat state interests, and among federal interests, executive prerogative beats congressional oversight. Lawyers should frame their arguments accordingly.
This is where being a non-originalist is a mixed bag, since there is significant historical support for the idea that the rights created by the states were meant to be respected. The good news is that on those rare occasions when Congress is so moved that it acts to extend liberty via federal statute, the new Chief may be sympathetic to that exercise of sovereignty (it’s too early to say for sure, but this may be a positive sign for the future of federal civil rights statutes). The bad news is that when state or local governments act to extend notions of liberty, he may be less inclined to engage in sophisticated analysis to empower them.