About Those Categories...

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.

In asking the Supreme Court to block Oregon, the Bush administration argued that nothing in the CSA's text or legislative history suggests that the law delegates to the states the determination of which medical practices are "legitimate" and "in the public interest." So deference was due to the attorney general's understanding of "legitimate medical purpose" and "the public interest."

Scalia, joined by Thomas and Roberts, noted that 47 states explicitly condemn physician-assisted suicide, so, as the majority conceded, it was "reasonable" for Ashcroft to conclude that what Oregon authorizes is not regarded nationwide as "legitimate" medicine. But why is Oregon not entitled to its own understanding of legitimate medicine?

Besides, if Congress did imply for the attorney general a power that the court says Ashcroft wrongly claimed, Congress can now explicitly do so. And if Congress wants to criminalize physician-assisted suicide, it can do that, too. Social conservatives, unchastened by public disgust about their attempt 10 months ago to drag the federal government into the Terri Schiavo tragedy, might now try to get Congress to legislate for the nation what Ashcroft tried to impose on Oregon--nullification of physician-assisted suicide. But 60 senators might be needed to defeat a filibuster by Oregon's senators.

All this is, in five ways, how things ought to work. First, nine years ago the court held that there is no constitutional "right to die," so such a right must be legislated, not tendentiously tickled from the Constitution's text. Second, the court should construe controversial executive-branch interpretations of laws. Third, Congress can correct what it considers judicial misconstruings of its enactments. Fourth, an intense Senate minority, or even a single senator, should be a serious, if not always decisive, impediment to a congressional majority imposing its will on all 50 states. Fifth, federalism should often mean broad latitude for a single state to be, as Justice Louis Brandeis said 74 years ago, "a laboratory" to "try novel social and economic experiments without risk to the rest of the country."

So, what is conservative about conservatives' complaints about the court's decision?

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