Oregon assisted suicide law upheld

The Supreme Court has upheld Oregon's assisted suicide law 6-3, in the case of Gonzales v. Oregon. The majority opinion was written by Kennedy, joined by O'Connor, Souter, Stevens, Breyer, and Ginsburg. Scalia dissented, joined by Roberts and Thomas. Thomas also dissented separately.

My observations on this case:

  1. Roberts kind of telegraphed his vote with his questioning during the hearing of this case, but it's become clear he isn't an O'Connor style moderate; he's now revealed himself to be a conservative tool who will throw states' rights out the window when it's in the conservative movement's best interest.

  2. Kennedy is definitely flexing his swing-vote muscle, and assuming Alito winds up on the court, Kennedy becomes the person to watch as to how social-issues cases get decided.

There's more...
3) As much as this case shows the conservatives being unprincipled and philosophically inconsistent (promoting federal power over the states in this one particular area), you could probably say the same thing about the moderates, who usually tend to err on the side of federal authority (which sometimes leads to undesirable results, as with Kelo and Raich). Along those lines, I was halfway expecting this case to be another one of those bass-ackwards cases like Kelo and Raich where the moderates supported a restrictive federal policy in order to more generally protect the government's ability to regulate, and the conservatives endorsed a more "progressive" result with the philosophical goal of reducing the federal government's regulatory reach.

But that didn't happen here... and the rationale, apparently, is that both sides treated this case as a boringly narrow statutory interpretation question (i.e. the Controlled Substances Act) and the AG's administrative rule-making authority, rather than a broad constitutional Commerce Act question. So, that allowed them all to vote their consciences without worrying about giving the other side a precedential building block.

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Outstanding analysis Crazy
I've never considered Kennedy a "moderate" in the classic sense but the one thing which differenciates him from the Scalia wing of the court is that he's not an ideologue. As long as John Paul Stevens remains on the Court, I agree that Kennedy will hold a significant amount of sway and that most decisions will be decided in an unusually narrow manner as a result.  

I still have my papers from comparison analyses between the Warren and Burger Courts which I worked on as a graduate student and the thing which strikes me the most now is that a Court with Alito will place an increasing emphasis on the Congress to enact laws deciding matters which were purposefully left open by that body for open interpretation by the courts.

Perhaps this is a good thing which will eventually energize the electorate towards a direction away from the neocons who have successfully exploited the Christian right by waging a faux war on the courts in order to accomplish success at the ballot box.

What most people are unaware of is that the founders learned most of what they knew at the time about the separation powers from Montesquieu. He greatly disliked the power of the courts and would have never envisioned them as an equal power to the executive or legislative branches. Despite the fact the the courts have proven to be the most effective vehicles of immediate change in our own democratic experience, they have been effectively trumped by popular will when their rulings were counter to that of the electorate.

There's really no reason for alarm among progressives. So called "conservative" courts have oftentimes served as the primary catalyst for more lasting social changes contrary to their own rulings. The key is simply to study the actual effects of their rulings and get ahead of the curve amongst the general electorate before the ballot boxes open.    


by Seldom Seen Smith 2006-01-17 10:56AM | 0 recs
Re: Outstanding analysis Crazy

I don't know if this really responds to your point or not, but there are schools of thought that the judiciary is just a fundamentally "conservative" institution, and that's just the nature of the beast (not conservative in the sense of reflecting a Republican agenda, but just backward-looking and reflecting the agenda of what was going on decades earlier). The judiciary is the anchor that the executive and legislative branches drag around behind them that slows them down and often foils them... and as you alluded, often winds up pissing off the "people" as well as the exeuctive and legislative branches. What with lifetime appointments for Article III judges, the executive and legislative branches are always left fighting judges who reflect the agenda of the administration that appointed them 10 or 20 years ago. Usually that's frustrating to progressives but sometimes that works to our advantage, like during the Nixon years, or even now on occasion... the judiciary has certainly put its foot down regarding some of Bush's worst abuses, as the Supreme Court did in the Hamdan case, or even the (usually ultra-conservative) 4th Circuit in the lastest Jose Padilla case.

by Crazy Vaclav 2006-01-17 11:37AM | 0 recs
Re: Outstanding analysis Crazy
I don't expect this Court to put its foot down on the abuses of BushCo. What I do expect is that it will continue to rule in favor or Wall Street. The current Court is only one judge away from being a mirror image of the Taft court, a pro-corporation court. We already know how that turned out.
by Seldom Seen Smith 2006-01-17 01:05PM | 0 recs
Sorry, one more thing
My grandfather, a purple heart recipient from WWII, recently passed on to the next phase after having suffered from Parkinson's desease for the last six years of his life. The last two years weren't worth a bent nickel and he laid on his deathbed suffering the final six months.

As a grandson, it wasn't my call but seeing my grandfather, who could work right along with any of us kids at 60, lying in a bed in a diaper unable to speak, or even take a whiz with a feeding tube in his stomach was enough to convince me it ain't worth it.

Thank God the Oregon law held up in court.

by Seldom Seen Smith 2006-01-17 01:30PM | 0 recs
Re: Outstanding analysis Crazy
Oh yeah... human rights abuses maybe, but abuses by BushCo's corporate benefactors, no, of course that'll always go unchecked. That's why Roberts is there in the first place; he was Wall Street's de facto solicitor general, as every big case (OK, with one major exception, for the Tahoe-Sierra takings case) that he argued before the Supreme Court was on the side of big biz.

Of course, that's why I kind of have to shrug about O'Connor's departure, since she was no moderate (and I note that I accidentally referred to her as a "moderate" in my diary; that's how ingrained that meme is in our culture). She was usually good on the social issues cases, but when it came down to anything where business was involved, she always seemed to be on the side of less regulation, and thus more discrimination, more pollution, etc.

(Not that's there anyone on the court... probably not even Ginsburg... who would stake out an activist anti-business position. A case that somehow found its way before the court that, say, challenged the notion of artificial personhood or perpetual existence for corporate entities would go down 9-0.)

by Crazy Vaclav 2006-01-17 01:53PM | 0 recs
Re: Outstanding analysis Crazy
I left the Democratic Party and changed my registration status to Independent primarily due to the issue of corporate personhood.

Reckon I'm just another naive dumbass, huh? The netroots gurus are afraid of this one because it differenciates true progressives from partisan Democrats - Too bad.  

by Seldom Seen Smith 2006-01-17 02:15PM | 0 recs
Thomas' dissent is different, and a reminder that he's not just a conservative political tool, but something a little more dangerous.

He implies that the jurisprudence that allows the Attorney General such far reaching power under the CSA is flawed in the first place (he said this more directly in his dissent to Raich).  But he says the current decision is in error because it's inconsistent with precedent on statutory interpretation while skirting the constitutional questions.  So, his dissent is contingent on the fact that the commerce clause and separation-of-powers questions weren't reopened.  Here's a telling quote:

While the scope of the CSA and the Attorney General's power thereunder are sweeping, 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.

The reason I mention this is because Thomas is actually a really fascinating and rather scary character.  He's:

  1.  Likely very extreme, if he ever truly had his way - a "constitution in exile" judge.  These are the words of someone who wants to revisit the scope of the Commerce Clause beyond what the Renquist court was willing to do (we already knew this), and probably wants to reconsider precedent regarding Congressional delegation of legislative authority through the administrative rulemaking process.  A regulatory agency like the EPA might be effectively unable to operate both on federalism and non-delegation doctrine grounds under a Thomas court.

  2.  Very consistent.  Not a conservative tool in the political sense.  Instead, a regressive in a legal sense.

He's been underestimated, IMHO, and is more dangerous than I think many on the left have been prepared to allow.  It's far past time to put to rest the sense that he's some bumbling follower of a judge that slipped onto the court.  If you go through enough of his dissents, it's clear that this guy has a guiding star.
by arenwin 2006-01-17 03:28PM | 0 recs
Re: Thomas
Great observation; Thomas, in his weird way, is being more consistent than anyone else on the court (and that's often the case, as you point out), although he's too clever by half. (May be the first time I've ever used "clever" and "Thomas" in the same sentence.) Essentially his excuse for voting the way he did while still exercising his constitution-in-exile hobby horse is that although Raich was wrongly decided, we're bound to follow its faulty conclusions and treat the CSA expansively. As if he's suddenly become the Court's biggest fan of stare decisis all of a sudden!
by Crazy Vaclav 2006-01-18 07:25AM | 0 recs


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