When I began this column project, I promised to review interesting court cases to make complex decisions more understandable. When the Supreme Court this week issued its most interesting decision of the John Roberts era, I found my first opportunity.
If you’ve already heard about this case, you probably know it as the case that upheld Oregon’s assisted suicide law. The case, however, was not really about assisted suicide. Instead, the Court confronted whether the Justice Department had the right to unilaterally revoke licenses of doctors who had prescribed lethal doses of medicine under the Oregon law. The case was more about federal power than assisted suicide.
The Facts: In 1994, Oregon voters enacted the Death with Dignity Act, a highly-regulated scheme allowing terminally ill patients to request lethal doses of medication in extremely limited circumstances. After several attempts by the federal government to curtail the law failed to pass in Congress, then-Attorney General John Ashcroft announced in 2001 his intent to revoke the licenses of any doctor proscribing medication used in assisted suicide. Oregon immediately filed this suit.
The Ruling: Noting that Ashcroft had made his decision “without consulting Oregon or apparently anyone outside the Justice Department,” the Court voted 6-3 to prevent the doctors’ licenses from being revoked. Justice Kennedy wrote the majority decision and was apparently disturbed that an Attorney General with no medical expertise had taken it upon himself to determine for the nation what was to be considered a legitimate medical purpose. At his whim, Ashcroft had declared a state-authorized medical procedure to be a federal offense. Justice Kennedy was unwilling to grant the Attorney General such extraordinary authority.
Why It’s Interesting: This case is a gem for a host of reasons. First, the way the justices voted is quite quirky. The more liberal justices, who generally argue for the federal government’s power to regulate, sided with Oregon, while the conservative justices, usually the champions of states’ rights, sided with the federal government. Justice Scalia, who generally abhors any effort by the federal government to usurp the power of the states, wrote a dissent based primarily on his personal conclusion that assisted suicide was not a legitimate medical practice. In other words, he agreed with Ashcroft’s judgment on the issue and voted accordingly. This is a far cry from the usual Scalia argument that Supreme Court decisions should be rooted in strict interpretation of the Constitution, not the opinions of the individual justices. The hypocrisy exhibited by both the liberal and conservative justices in arriving at their preferred result further undermines the ideal of an impartial, apolitical court.
The result is all the more quirky because only seven months ago, the Supreme Court considered a related issue – could the Justice Department prosecute those who grew medical marijuana consistent with California law – and came to the exact opposite conclusion. The sides were less clear cut along liberal-conservative lines, but a 6-3 Court ruled then that the Justice Department did have that power. Justice Thomas, the only justice on the losing side in both cases, wrote that this flip flop was “perplexing to say the least.” (Pay attention because I will not write the following sentence very often) Justice Thomas is right. Taken together, the California and Oregon cases provide little guidance on the reach of the federal government in regulating controversial drug treatments.
Perhaps the most significant take home point from this case, however, is what it says about the likely future of the Supreme Court. Chief Justice Roberts joined Justice Scalia’s dissent, setting off alarms for liberals who hoped he would prove more moderate than Scalia. With the apparently imminent addition of Samuel Alito to the Court, should Roberts regularly side with Scalia, Scalia may have a solid block of four votes for the foreseeable future. In addition, Alito’s addition and Justice O’Connor’s departure mean that Justice Kennedy, the author of this opinion will become the Court’s all-important swing vote. Thus, this decision could be a preview of the Court to come. Those concerned that Kennedy will prove less moderate than O’Connor may be comforted by the fact that Scalia’s dissent was characteristically condescending and dismissive of Kennedy’s balance-striking opinion. Such tactics pushed O’Connor away from the arch-conservative camp. Whether they will do the same with Justice Kennedy, the new swing vote, remains to be seen.
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