Roberts Gets it Wrong

Good news and bad news about the new Chief Justice.

The Bad: He, Scalia and Thomas dissented in today's decision in Gonzales v. Oregon, a case challenging Oregon's Death With Dignity Act. The majority held that the Controlled Substances Act does not pre-empt states from enacting legislation such as Oregon's, while the Court's three conservatives disagreed.

Roberts didn't write his own dissent -- he just signed on to Scalia's -- but I single him out because even though Scalia and Thomas screw up occasionally, they are reliably conservative, and the big question is how Roberts will turn out.

I actually don't support Oregon's physician-assisted suicide law. I think it's a bad law, and there's no way I would have voted for it. That said, a majority of Oregon voters disagreed with me. Twice. The only question, after the people have expressed their will, is whether something in the federal Constitution prevents that will from taking effect. As the Constitution is silent on the question of physician-assisted suicide, I think that leaves the matter firmly in the hands of Oregon voters.

The Constitution was not actually at issue in Gonzales v. Oregon. That's because it was freshly established, in Gonzales v. Raich, that (contrary to common sense) Congress somehow has power under the interstate commerce clause to outlaw drugs. So the question in Oregon was whether the Controlled Substances Act (CSA) was broad enough to cover physician-assisted suicide. As the statute was intended to criminalize drug abuse and trafficking, rather than the knotty question of government power vs. a right to die, I think the question is a simple one. Congress hasn't spoken, so there's no pre-emption, so the state can do whatever it wants.

The basis of Scalia's dissent was that Attorney General John Ashcroft, and Alberto Gonzales after him, promulgated regulations saying that the CSA does cover physician-assisted suicide. Scalia argued, for technical reasons I won't get into here, that Ashcroft's regulations should be given deference by the courts. His is not an unreasonable argument, but I didn't find it convincing. That's the one Roberts signed.

Thomas dissented separately, and noted that in Gonzales v. Raich, the Court had to interpret the CSA very broadly to cover marijuana grown, prescribed and consumed locally. He then complained that the Court essentially back-tracked on Raich when it decided to read the CSA narrowly for purposes of this case. I think he's right. We've got two clear-cut cases of liberal ideology trumping honest discussion of federalism. (Note: the same is true of Scalia, who in Raich was willing to jettison federalism concerns just to stop marijuana use).

The Good: If Roberts is going to be wrong, at least he's in good company. So far this term, there have only been two cases with serious splits (a death penalty case, and now this right to die case), and both times he voted with Scalia and Thomas. If anything, I find this as evidence that Bush knew what he was doing when he nominated Roberts as Chief.

The Ugly: As if it needed to be said.