Not much time to post right now, so I may comment more later.
The Supreme Court upheld Oregon’s one-of-a-kind physician-assisted suicide law Tuesday, rejecting a Bush administration attempt to punish doctors who help terminally ill patients die.
Justices, on a 6-3 vote, said that federal authority to regulate doctors does not override the 1997 Oregon law used to end the lives of more than 200 seriously ill people.[…]
The administration improperly tried to use a drug law to prosecute Oregon doctors who prescribe overdoses, the court majority said.
“Congress did not have this far-reaching intent to alter the federal-state balance,” Justice Anthony M. Kennedy wrote for himself, retiring Justice Sandra Day O’Connor and Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
And who was on the side of the Federal government against the states (in fact, in this case, it was simply the executive branch of the federal government against the states)?
Justice Antonin Scalia, writing for himself, Roberts and Justice Clarence Thomas, said that federal officials have the power to regulate the doling out of medicine.
Update: As discussed in comments, it seems likely that Thomas voted this way, at least in part, so he could write his own dissent.
This Supreme Court decision is causing a lot of talk around the blogosphere. Certainly, at first glance, many are shocked at the comparison of Raich and Oregon.
Professor Bainbridge‘s reaction is common:
According to our Supreme Legislature Court, federal drug law does not preempt state law when it comes to doctors prescribing drugs so their patients can kill themselves, despite the long-standing moral and legal traditions against suicide. But federal drug law does preempt a state law that would allow doctors to alleviate suffering by prescribing a simple joint.
What many are noting with this decision is the whole notion that in complex cases (and when are they not at the Supreme Court level), it isn’t simply a matter of interpreting the text of the constitution as it was written, but it requires filling in gaps — making judgements — and those judgements inevitably involve Justices using their own views of the subject matter.
Armando at Daily Kos
Federal power vs. state power – whither federalism? So the lineup of the Justices in this decision makes it startlingly clear that EACH AND EVERY JUSTICE was a results-oriented legal realist in this case. As they are in EVERY case with such ambiguity and import.
John Cole at Balloon Juice:
Were Alito on the court, I have seen nothing that would persuade me that he would not join the other ‘federalists’ in trying to strike down the ban.
All together now, conservatives– “States Rights!”
All Justices are activist judges. They have no choice.
Now this case is also, to some extent, even more complex. It involves the interpretation of the CSA by the Executive Branch. The CSA specifically forbids marijuana. It does not specifically forbid assisted suicide — that idea was Ashcroft’s. Some have opined that the same Court would uphold a ban against assisted suicide if Congress passed it.
Interestingly, in fact, one could interpret this decision to be, in part, a reaction to recent Executive Branch power grabs.