Wednesday, January 25, 2006

They're not what they seem

Many conservatives (and some liberals) mistakenly refer to Antonin Scalia and Clarence Thomas as "strict constructionists" who abide by the strict letter of the highest law of the land, i.e. the Constitution of the United States. They are seen as protectors of the Tenth Amendment--which says the powers not delegated to the federal government are reserved to the states-- against big-government liberals. The facts, however, prove these contentions utterly false. Let's look at the most recent decision of the Roberts Court, its first major decision. Incidentally, this case was brought to my attention by a column by conservative George Will in Newsweek.

The Supreme Court upheld by a 6-3 vote the constitutionality of an Oregon law legalizing physician-assisted suicide. This law was passed by a large majority of the people of Oregon. The Court's decision was absolutely correct; it upheld the principles, as Will says, of "judicial modesty and deference to policies adapted democratically." It also upheld the original understanding of the Constitution, namely that the states retain all powers not delegated to the federal government. So who were the anti-federalist dissenters, you ask? Ginsburg and Breyer, right? No, Scalia, Thomas, and Roberts all dissented. They care nothing for the Tenth Amendment if it interfers with their personal agenda. As we saw in Bush v. Gore, Scalia and Thomas cast aside federalism when it's convenient for them to do so. They are hypocrites and frauds. I'll say it: they are judicial activists. Let's hear no more from the Republicans about the evils of "legislating from the bench." That's exactly what Scalia and Thomas did in this case. This is what we can expect from Alito, with his extra-constitutional theory of the unitary executive--that is, the claim that the president's executive power cannot be infringed upon by Congress or the courts. (Thanks to the New Republic's legal affairs editor Jeffrey Rosen for that explanation).

Bottom line here: there are no "orginalists,"strict constructionists," or "textualists" on the Supreme Court. There is plenty of hypocrisy, however, on the Court.


Baby said...

I agree with the majority but the case is slightly more complicated than pure federalism. The issue is largely based on the amount of deferance the courts should give an Attorney General's interpretation of regulation and statute. (Chevron & Auer cases precedent). The dissenters thought a federal official of the executive branch should be given the benefit of the doubt if their interpretations were reasonable (and judging 'assisted' suicide as non-medical may be reasonable).

Also, the decision mentions "virtually every medical authority from Hippocrates to the current American Medical Association (AMA) confirms that assisting suicide has seldom or never been viewed as a form of "prevention, cure, or alleviation of disease," and (even more so) that assisting suicide is not a "legitimate" branch of that "science and art."
. . Indeed, the AMA has determined that " '[p]hysician-assisted suicide is fundamentally incompatible with the physician's role as a healer.' " Washington v. Glucksberg, (1997). "[T]he overwhelming weight of authority in judicial decisions, the past and present policies of nearly all of the States and of the Federal Government, and the clear, firm and unequivocal views of the leading associations within the American medical and nursing professions, establish that assisting in suicide ... is not a legitimate medical purpose."

Jack Davis said...

I don't understand. Where does the A.G. get the right to interpret a state law? He has no jurisdiction over what the people of Oregon decide-if the 10th Amendment is to have any meaning whatsoever. After Janet Reno and John Ashcroft, I don't want excessive authority in the A.G.

Second, I don't see the point of your AMA quotes. The AMA does not speak for all doctors; I doubt it even speaks for the majority. When you finish law school, I assume you won't be bound the decisions of the ABA, which is well to your left.

Scalia showed his inconsistency in an earlier case involving the use of medical marijuana. He ruled, if I recall correctly, that the fed gov could prohibit states from allowing the use of marijuana in medical therapy. That's why I believe he and Thomas are not "strict constructionists" or "originalists".