About Those Categories. in the Roberts Court's First Major Decision, the Ideas of Liberalism, Conservatism, Activism and Deference to Democracy Got Blurred

By Will, George F. | Newsweek, January 30, 2006 | Go to article overview

About Those Categories. in the Roberts Court's First Major Decision, the Ideas of Liberalism, Conservatism, Activism and Deference to Democracy Got Blurred


Will, George F., Newsweek


Byline: George F. Will

For many months the nation has reverberated with the clanging certitudes that swirl around today's process of confirming Supreme Court justices. Last week the first major decision handed down by the Roberts Court demonstrated the problematic nature of the simplifying categories by which justices and rulings are characterized. The 6-3 decision, which affirmed a ruling by the very liberal Ninth U.S. Circuit Court of Appeals, upheld the constitutionality of Oregon's law legalizing physician-assisted suicide. The Supreme Court's decision could be characterized as conservative, exemplifying judicial modesty in deference to policies adopted democratically.

The three dissenters--John Roberts and Clarence Thomas embracing Antonin Scalia's argument--favored striking down the law that Oregonians passed in a 1994 referendum and resoundingly reaffirmed by a 60 percent vote against a 1997 attempt to repeal it. The dissent by the three conservatives could be characterized as liberal--judicial activism favoring the federal government's aggrandizement of its power at the expense of federalism.

Oregon is the only state that authorizes physician-assisted suicide. An Oregon resident who two doctors attest is mentally competent and has less than six months to live can request prescription medication "for the purpose of ending his or her life." A physician may not administer the drug.

But in 1970 Congress passed the Controlled Substances Act to combat drug abuse and trafficking. Regulations to implement the CSA say that a prescription must be issued for "a legitimate medical purpose." In 1984 Congress empowered the attorney general to prevent physicians' prescriptions "inconsistent with the public interest." In 1998 Attorney General Janet Reno ruled that the CSA did not authorize "adverse action against a physician who has assisted in a suicide in full compliance with the Oregon Act." She said she had no authority "to displace the states as the primary regulators of the medical profession." In 2001 Attorney General John Ashcroft reversed Reno: "Assisting suicide is not a legitimate medical purpose."

The Ninth Circuit held that because Ashcroft's directive "alters the usual constitutional balance" between the federal government and the states, which generally regulate medical practices, federal courts must "be certain of Congress' intent before finding that federal authority supercedes state law." The Ninth Circuit said neither the CSA's text nor legislative history indicates a congressional intent to authorize the attorney general to ban medical practices that are legal under state law and not related to drug trafficking or abuse. …

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