Oregon Assisted Suicide SC Ruling: Thomas Dissent


PDA






publius
January 18, 2006, 10:51 PM
I know someone will ask how this is gun related. In addition to the fact that I'm pretty sure this whole interstate commerce thingy (http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html) is all tied up with our gun rights (http://www.supremecourtus.gov/docket/04-617.htm), this one is about giving someone a prescription for a lethal dose. If someone is denied a lethal dose, he might start fishing around the house for something lethal...

Anyway, does anyone else see Justice Thomas using this one as his own big "I told you so" for the rest of the Court?

Justice Thomas, dissenting (http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/000/04-623.html).

When Angel Raich and Diane Monson challenged the application of the Controlled Substances Act (CSA), 21 U. S. C. 801 et seq., to their purely intrastate possession of marijuana for medical use as authorized under California law, a majority of this Court (a mere seven months ago) determined that the CSA effectively invalidated California's law because "the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner." Gonzales v. Raich, 545 U. S. ___, ___ (2005) (slip op., at 24) (emphasis added). The majority employed unambiguous language, concluding that the "manner" in which controlled substances can be utilized "for medicinal purposes" is one of the "core activities regulated by the CSA." Id., at ___ (slip op., at 25). And, it described the CSA as "creating a comprehensive framework for regulating the production, distribution, and possession of ... 'controlled substances,' " including those substances that " 'have a useful and legitimate medical purpose,' " in order to "foster the beneficial use of those medications" and "to prevent their misuse." Id., at ___ (slip op., at 21).

Today the majority beats a hasty retreat from these conclusions. Confronted with a regulation that broadly requires all prescriptions to be issued for a "legitimate medical purpose," 21 CFR 1306.04(a) (2005), a regulation recognized in Raich as part of the Federal Government's "closed ... system" for regulating the "manner" in "which controlled substances can be utilized for medicinal purposes," 545 U. S., at ___, ___ (slip op., at 10, 24), the majority rejects the Attorney General's admittedly "at least reasonable," ante, at 26, determination that administering controlled substances to facilitate a patient's death is not a " 'legitimate medical purpose.' " The majority does so based on its conclusion that the CSA is only concerned with the regulation of "medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood." Ante, at 23. In other words, in stark contrast to Raich's broad conclusions about the scope of the CSA as it pertains to the medicinal use of controlled substances, today this Court concludes that the CSA is merely concerned with fighting " 'drug abuse' " and only insofar as that abuse leads to "addiction or abnormal effects on the nervous system."1 Ante, at 26.

The majority's newfound understanding of the CSA as a statute of limited reach is all the more puzzling because it rests upon constitutional principles that the majority of the Court rejected in Raich. Notwithstanding the States' " 'traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens,' " 545 U. S., at ___, n. 38 (slip op., at 27, n. 38), the Raich majority concluded that the CSA applied to the intrastate possession of marijuana for medicinal purposes authorized by California law because "Congress could have rationally" concluded that such an application was necessary to the regulation of the "larger interstate marijuana market." Id., at ___, ___ (slip op., at 28, 30). Here, by contrast, the majority's restrictive interpretation of the CSA is based in no small part on "the structure and limitations of federalism, which allow the States ' "great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons." ' " Ante, at 23 (quoting Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996), in turn quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 756 (1985)). According to the majority, these "background principles of our federal system ... belie the notion that Congress would use ... an obscure grant of authority to regulate areas traditionally supervised by the States' police power." Ante, at 28.

Of course there is nothing "obscure" about the CSA's grant of authority to the Attorney General. Ante, p. ___ (Scalia, J., dissenting). And, the Attorney General's conclusion that the CSA prohibits the States from authorizing physician assisted suicide is admittedly "at least reasonable," ante, at 26 (opinion of the Court), and is therefore entitled to deference. Ante, at 6-7 (Scalia, J., dissenting). While the scope of the CSA and the Attorney General's power thereunder are sweeping, and perhaps troubling, 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. See, e.g., Raich, supra; Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001).

I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (Thomas, J., dissenting); cf. Whitman, supra, at 486-487 (Thomas, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States' " 'traditional ... powers ... to protect the health, safety, and welfare of their citizens.' "2 Raich, supra, at ___, n. 38 (slip op., at 27, n. 38). The Court's reliance upon the constitutional principles that it rejected in Raich--albeit under the guise of statutory interpretation--is perplexing to say the least. Accordingly, I respectfully dissent.


I'm not so sure that was "respectfully" but anyway... ;)

If you enjoyed reading about "Oregon Assisted Suicide SC Ruling: Thomas Dissent" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
taliv
January 18, 2006, 11:15 PM
it seems to me that what thomas is saying is that lower courts could interpret this as SCOTUS reversing their ruling in Raich, which means, we get our machine guns back, and the hippies get their weed back.


wishful thinking, i know...

Biker
January 18, 2006, 11:23 PM
.

Telperion
January 18, 2006, 11:29 PM
That's my read of it: Thomas taking the opportunity to scoff at his fellow Justices' capriciousness and rub their noses in it. In my opinion, Thomas is the brightest bulb on the Court. I've certainly never read a dull opinion by Thomas.

Igloodude
January 18, 2006, 11:51 PM
it seems to me that what thomas is saying is that lower courts could interpret this as SCOTUS reversing their ruling in Raich, which means, we get our machine guns back, and the hippies get their weed back.


wishful thinking, i know...

Intriguing thought. Thomas dissented in Raich, after all... :scrutiny:

beerslurpy
January 19, 2006, 12:03 AM
That's my read of it: Thomas taking the opportunity to scoff at his fellow Justices' capriciousness and rub their noses in it. In my opinion, Thomas is the brightest bulb on the Court. I've certainly never read a dull opinion by Thomas.

Clarence Thomas knows he is right, and I think a lot of people who follow the court agree, myself among them. To apparently reverse a major constitutional issue in a statutory interpretation case is completely capricious and I'm glad we have someone up there pointing it out.

I feel that Raich was decided wrongly because it grossly misinterpreted the text and the intent of the constitution. This case didnt present an opportunity to revisit Raich and was thus also wrongly decided because it implicitly rejected all of the holdings of Raich.

The virtually unlimited commerce clause authority from Raich is INCOMPATIBLE with limited powers or any concept of 10th amendment federalism. The Supreme Court urgently needs to establish a single, clear principle that decides what limits the constitution puts around congress and then award the rest to the discretion of the states. You know, like they did in 1789.

RealGun
January 19, 2006, 09:49 AM
If the commerce clause issue were really addressed, insisting that interstate commerce had to be genuine and straightforward, some of these cases might have no basis to be accepted by federal courts, other than to address prior rulings that needed to be overturned as a result. Then cases that didn't meet the test of genuine IC couldn't be appealed, i.e. wouldn't be accepted, beyond a State Supreme Court. Is that correct?

beerslurpy
January 19, 2006, 10:00 AM
Wrong, because the suprme court can review laws on other grounds. It has always been this way.

A lot of cases would stop appearing before federal courts, if only because many unconstitional laws would be nullified by a correction of CC jurisprudence. These laws could be enacted at a state level (much like CA's assault weapon ban) but people could avoid any stupid laws by moving to states without such laws. It would actually be a much better system in a variety of ways.

As a matter of fact, federal courts would probably be pretty quiet with no narcotics or firearms cases to hear. And the state and local court system would be unburdened as well since people breaking laws they felt unjust would probably move en masse to jurisdictions where those laws werent in place.

If you want to own machine guns you wouldnt live in NYC and if you want to sip bourbon you wouldnt live in a dry county in Alabama. The current system applies a one-size-fits all rule to every nook and cranny of the US. There are no areas of the country where you can smoke weed legally, nor are there any areas in the country where someone wishing to purchase new machine guns can do so.

RealGun
January 19, 2006, 10:14 AM
Wrong, because the suprme court can review laws on other grounds. It has always been this way.

A lot of cases would stop appearing before federal courts, if only because many unconstitional laws would be nullified by a correction of CC jurisprudence. These laws could be enacted at a state level (much like CA's assault weapon ban) but people could avoid any stupid laws by moving to states without such laws. It would actually be a much better system in a variety of ways.

As a matter of fact, federal courts would probably be pretty quiet with no narcotics or firearms cases to hear. And the state and local court system would be unburdened as well since people breaking laws they felt unjust would probably move en masse to jurisdictions where those laws werent in place.

If you want to own machine guns you wouldnt live in NYC and if you want to sip bourbon you wouldnt live in a dry county in Alabama. The current system applies a one-size-fits all rule to every nook and cranny of the US. There are no areas of the country where you can smoke weed legally, nor are there any areas in the country where someone wishing to purchase new machine guns can do so.

You say "wrong" but then go on to pick up on what I had in mind. The question really is what would happen if the house of cards was torn down. The what-if can make an interesting story.

For example, why wouldn't some now consider moving to Oregon?

Kharn
January 19, 2006, 10:15 AM
That's my read of it: Thomas taking the opportunity to scoff at his fellow Justices' capriciousness and rub their noses in it. In my opinion, Thomas is the brightest bulb on the Court. I've certainly never read a dull opinion by Thomas.+1, and the left claim's he's stupid. Who's stupid now? :neener:

Kharn

1911 guy
January 19, 2006, 10:20 AM
Is the brightest man (or woman) on the Court right now. This is exactly why the libs had to dig up Anitta Hill to sully him several years ago. I can only hope that Alito and (I can't think of his name. New Chief Justice.) will follow in his legal and fairly strict Constitutional footsteps.

Edit to remove emoticon. Didn't come across like I meant it to.

RealGun
January 19, 2006, 10:38 AM
Is the brightest man (or woman) on the Court right now. This is exactly why the libs had to dig up Anitta Hill to sully him several years ago. I can only hope that Alito and (:cuss: I can't think of his name. New Chief Justice.) will follow in his legal and fairly strict Constitutional footsteps.

I think they like making the law more or less than it is. They probably also enjoy the notion that only the very brightest can keep up. Thomas is kind of the hero of common sense.

beerslurpy
January 19, 2006, 10:46 AM
You say "wrong" but then go on to pick up on what I had in mind. The question really is what would happen if the house of cards was torn down. The what-if can make an interesting story.

For example, why wouldn't some now consider moving to Oregon?

Wrong because the supreme court can still review stuff.
Wrong again because State Supreme Courts cannot overturn federal law. The lower federal circuits would apply a supreme court precedent reversing wickard and the Supreme Court would deny certiorari unless they wrongly applied the new precedent.

Nothing within the courts is structurally or procedurally changed. The main change to the courts would be the types and quantity of cases they would get.

The change to the average person on the street would probably be fairly big since people would be free to do many things legal under state laws but illegal under federal laws.

After such a decision, indviduals in jail would probably start filing writs challenging their imprisonment for breaking laws that have been implicitly nullified by the new decision. Probably close to a million people would be getting out of federal prison on the drug issue alone. I personally suspect this was the implicit reasoning for Raich.

Bartholomew Roberts
January 19, 2006, 10:57 AM
I always enjoy reading Thomas's opinions and consider him the most libertarian minded Justice on the court. Sadly, I do not expect to see that trend from Roberts, Alito or Scalia. They will be more traditional conservatives and will expand the power of the state, especially WRT law enforcement.

Henry Bowman
January 19, 2006, 11:00 AM
I fear that you are absolutly correct, Bart. The next Sup. Ct. will be even more critical.

RealGun
January 19, 2006, 11:01 AM
Wrong because the supreme court can still review stuff.


The difference could be in whether they grant cert.

publius
January 19, 2006, 07:59 PM
There will be no judicial revolution, not even a mild one.

The Court took a small step toward reining in federal power in Lopez, and what happened next? Congress rewrote the Gun Free School Zones Act the next year, attached it to a must-pass bill, and Clinton signed it, and it became law. It has not been challenged.

Had they gone the other way in Raich, it would have been another small step in the right direction, but it was not a challenge to the Controlled Substance Act itself, it was only a challenge to how that Act applied to certain people acting under California law.

But what's next? Will 5 judges tell millions of Americans that many of the federal laws they take for granted are not legitimate, and must go away? Will millions of Americans listen?

beerslurpy
January 19, 2006, 09:06 PM
There is a pair of clean water act cases coming up soon. One was denied certiorari and then granted cert a year later. It involves a man being imprisoned and fined for destroying "wetlands" which consisted of a puddle in a cornfield 20 miles from the nearest body of water. There is another one involving a paper mill in maine.

It looks like they might still have some fondness for going in the lopez/morrison direction. Even the majority opinion for raich raised the question of why they didnt assert that congress lacked authority to enact the CSA.

publius
January 20, 2006, 08:43 AM
Even the majority opinion for raich raised the question of why they didnt assert that congress lacked authority to enact the CSA.

Possibly because that argument has been raised and rejected numerous times. It might be true, but the courts are just not going to hear it.

VARifleman
January 20, 2006, 09:16 AM
Is the brightest man (or woman) on the Court right now. This is exactly why the libs had to dig up Anitta Hill to sully him several years ago. I can only hope that Alito and (I can't think of his name. New Chief Justice.) will follow in his legal and fairly strict Constitutional footsteps.

Edit to remove emoticon. Didn't come across like I meant it to.
Roberts is the new Chief Justice.

beerslurpy
January 20, 2006, 10:55 AM
Possibly because that argument has been raised and rejected numerous times. It might be true, but the courts are just not going to hear it.
No, they havent rejected it, not recently at least.

And I always thought it was the death knell of Raich when Scalia (I think) was asking if regulating the environment could be done through the commerce clause and her lawyers were like "oh no, we are just arguing for a more narrow exception to the CSA based on interstate commerce."

Then again, if they were unwilling to grant a narrow exemption, there is no reason they will grant a sweeping one.

My main gripe is a lack of consistency from ruling to ruling on the commerce clause. You cant really apply their rulings to facts outside of the case. Usually when the supreme court rules, you get some principle that is applicable to future cases with somewhat similar facts. In the recent commerce clause cases, you get clever verbal gymnastics in the majority opinion but nothing really solid to stand on. I would never have predicted the outcome of Gonzales vs Oregon in light of Raich which essentially contradict one another.

roo_ster
January 20, 2006, 11:32 AM
Yet more proof why the leftists continually try to destroy Thomas. He sees their bravo sierra for what it is and call them on it.

In Ann Coulter's words, "Bush ought to find eight more just like Thomas. For one thing, it would be really cool to have an all-black Supreme Court. But mostly it would be nice to go back to living in a democracy again."

Beren
January 20, 2006, 12:01 PM
Yet more proof why the leftists continually try to destroy Thomas. He sees their bravo sierra for what it is and call them on it.

It's not just the leftists. If Roberts and Scalia were half the jurist Thomas is, our principles of liberty would be far better safeguarded.

xd9fan
January 20, 2006, 01:50 PM
wednesday's Jan 8th Wall Street Journal op-ed has a GREAT writeup on this case titled "Federalism, a la Carte"
I dont have access to post it online but the best line of the article has to be

"We sympathize with justice Thomas's suggestion that this is another case of results-oriented jurisprudence in federalist drag."

"The Bush Administration was also guilty in theis case of abandoning for political purposes what ought to be its own federalism principles. Mr Ashcroft had reversed a policy of the Clinton Administration in order to invalidate the Oregon law at the behest of social conservatives who had lost the political battle over assisted suicide in that state. Results-oriented jurisprudence isn't any more admirable from the right than it is from the left."

LJWebster1
January 20, 2006, 01:57 PM
Read "Scalia Dissents" if you want to know Justice Scalia. He is absolutely committed to the Constitution. If that means sometimes his opinions don't get conservatives or libertarians where they want to be, too bad. If it's not in the Constitution or the traditions of this country, then Scalia wants no part of it, and leaves it to either Congress or the People to decide. Thomas is an amazing Justice as well, and I had the pleasure of meeting him in person when I was in law school. He is the most humble "VIP" I've ever seen. Truly great mind, which makes Harry Reid's contention that he is not bright all the more racist and ridiculous. I have high hopes for this Court. If the 4 of these Justices can convince just one of the other 5 to start reading the Constution as it is written, instead of how they would have written it, then we will be in good shape!

publius
January 20, 2006, 09:23 PM
wednesday's Jan 8th Wall Street Journal op-ed has a GREAT writeup on this case titled "Federalism, a la Carte"
I dont have access to post it online but the best line of the article has to be

Here's the back half of the article:

In his characteristically caustic dissent, Justice Scalia zeroes in on the word "legitimate," and says it is a "naked value judgment" for the Court to decide that somehow the AG lacks such authority because the case involves a practice (suicide) the liberals presumably endorse. And he has a point, insofar as Justice Kennedy's opinion jumps through logical hoops to square this decision with so many of its previous cases upholding federal power against the states. Mr. Kennedy isn't known as the great improviser for nothing.

In his own brief dissent, Justice Thomas cuts to the heart of the hypocrisy, pointing out that a mere seven months ago five of the six Justices in the majority in Oregon found broad federal authority under the same Controlled Substances Act to forbid the growth of medical marijuana, overruling a California law permitting the practice in Gonzales v. Raich.

Justice Thomas had argued for a more-limited federal authority in Raich, but in Oregon he seems to have cast what amounts to a protest vote for the minority. "I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure," Justice Thomas writes. "But that is now water over the dam." In other words, he's not about to join the Court's liberals in ignoring their own precedents simply to get to their favored policy conclusion.

We sympathize with Justice Thomas's suggestion that this is another case of results-oriented jurisprudence in federalist drag. But then again, even liberals come to the right conclusion once in a while. And if this case has led them to have greater respect for state prerogatives on profound cultural issues that ought to be settled by voters, rather than judges, so much the better for our democracy.

The Bush Administration was also guilty in this case of abandoning for political purposes what ought to be its own federalism principles. Mr. Ashcroft had reversed a policy of the Clinton Administration in order to invalidate the Oregon law at the behest of social conservatives who had lost the political battle over assisted suicide in that state. Results-oriented jurisprudence isn't any more admirable from the right than it is from the left.
I maintain a subscription, though I frequently don't have time to read it.
http://online.wsj.com/search/full.html#SB113755091281649281

Al Norris
January 21, 2006, 01:29 AM
Read "Scalia Dissents" if you want to know Justice Scalia. He is absolutely committed to the Constitution.
I'm not exactly how you can say that in light of his opinion in Raich.

There he took the stand of the majority because he refused to overturn precedent. Stare Decisis appears more important to Scalia than does a proper reading of the Constitution.

Thomas, on the other hand, has said he would revisit Wickard in a heartbeat.

publius
January 21, 2006, 06:22 AM
I'm not exactly how you can say that in light of his opinion in Raich.

You needed to read a little further, Al.

If it's not in the Constitution or the traditions of this country, then Scalia wants no part of it, and leaves it to either Congress or the People to decide.

Expanding upon commerce clause powers IS one of our legal traditions, and, as Scalia said in Oregon vs Gonzalez, ignoring that would mean repudiating 50 plus years of jurisprudence. Or maybe jurisrecklessness, if that were a word...

Al Norris
January 21, 2006, 09:34 AM
That was pure sarcasm... Publius, you're downright evil! :evil:

LAR-15
January 23, 2006, 02:17 AM
Well Alito did say that INTRASTATE possession of machineguns was out of jurisdiction of the commerce clause in Rybar

and reiterated that to Schumer at the hearings

Kharn
January 23, 2006, 01:45 PM
If it's not in the Constitution or the traditions of this country, then Scalia wants no part of it, and leaves it to either Congress or the People to decide. Scalia goes a little further than that, if one side wants a law repealed, they must specifically state that in their brief or he wont even consider voting to do so (or so I've heard).

Kharn

TheEgg
January 23, 2006, 04:56 PM
IANAL -- but:

My take on this case and on the vast majority of S.C. cases is that most S.C. justices are simply result oriented. They decide how they would LIKE public policy to be, then simply gin up (or have their clerks do it) some legalistic mumb-jumbo to justify their personal opinion. Most of the time, S.C. justices think of themselves as the 9 wise men (and/or women), who will FIX whatever is wrong with society today.

The idea that Justices would interpret the consititution and the law as written in a modest manner, died decades ago.

Edited to add: That is why they have no trouble making contradictory rulings regarding a law or constitutional principle from one day to the next.

Al Norris
January 24, 2006, 11:29 AM
Um Kharn? That wasn't myself that wrote what you quoted. It was LJWebster1. (just to set the record clear)

If you enjoyed reading about "Oregon Assisted Suicide SC Ruling: Thomas Dissent" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!