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Assisted Suicide Case:
The Supreme Court handed down Gonzales v. Oregon today, ruling in favor of the state 6-3. Kennedy wrote for the majority; Scalia, Thomas, and Roberts dissented. I've given the opinions a quick skim, but I'm in class and meetings most of today and probably won't be able to offer more thoughts until tonight.
Brett (mail):
I'm no legal eagle, but was initially surprised to see that Thomas dissented here, based on a very high level understanding of the case. In reading his separate dissent, he is basically calling out those in the majority as hypocrites, or at least very inconsistent.

Could it be that he actually agreed with the majority decision (given that, relatively speaking, he doesn't put too much importance on precedence) but chose to dissent simply to make a point and call them out?
1.17.2006 2:07pm
Fishbane (mail):
Best worst line in the dissent:

Since the Regulation does not run afowl (so to speak) of the Court's newly invented prohibition of "parroting"; [....]
1.17.2006 2:11pm
A Superfluous Man:
Brett, couldn't Thomas have wrote a concurring opinion, where he agreed with the ruling while attacking the hypocrisy of the rest of the majority? Or did he not do so to respect precedent?

He says near the end of his dissent that the case is a matter of interpreting the statutes, and not of deciding on whether this is a proper exercise of federal power. Perhaps I have misunderstood this part, but isn't the realm of the central government's power always under consideration?
1.17.2006 2:20pm
Fishbane (mail):
Another fairly remarkable statement from Scalia:

The only explanation for such a distortion is that the Court confuses the normative inquiry of what theboundaries of medicine should be—which it is laudably hesitant to undertake—with the objective inquiry of what the accepted definition of "medicine" is. The same confusion
is reflected in the Court's remarkable statement that "[t]he primary problem with the Government's argument . . . is its assumption that the CSA impliedly authorizes an Executive officer to bar a use simply because it may be inconsistent with one reasonable understanding of medical practice." Ibid. (emphasis added). The fact that many inOregon believe that the boundaries of "legitimate medicine"
should be extended to include assisted suicide does not change the fact that the overwhelming weight of authority
(including the 47 States that condemn physician-assisted suicide) confirms that they have not yet been so extended. Not even those of our Eighth Amendment casesmost generous in discerning an "evolution" of national standards would have found, on this record, that the concept of "legitimate medicine" has evolved so far.


So, is he accepting that, should another, say, 25 (30?) states eventually concur, and, perhaps, the AMA expands their definition, that objectively, Things Have Changed? Put another way, he seems to be arguing that the popular will of Oregon is trumped because many other states haven't yet considered the question, and by the way, this guild agrees with me. That seems like he's setting the stage to have his reasoning used against his judgement at a later date.
1.17.2006 2:23pm
Fishbane (mail):
(Sorry about the formatting on that copy/paste blockquote. I should have paid more attention.)
1.17.2006 2:25pm
Nick Beat:
It seems clear to me that this case is about statutory interpretation, and about the arcane notion of "Auer deference" in administrative law. It is not about whether there is a right to die, or about states' rights, or about whether the feds have the power to stop Oregon here. Indeed, I would expect that all of the justices would agree that the feds do have that power, just not with this particular statute.
1.17.2006 2:26pm
Roger Schlafly (www):
If there were a consensus in the USA that the legitimate practice of medicine included physicians deliberately killing patients with drug overdoses, then Scalia might have ruled the other way.
1.17.2006 2:30pm
David Matthews (mail):
From Thomas:

"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."

Clearly, he's using his dissent to point out the inconsistency of the so-called left wing of the Court. Unfortunately, his reasoning is lost on those who choose to dismiss him out-of-hand (read: everyone on the political left.)
1.17.2006 2:31pm
Fishbane (mail):
Thomas' money quote:
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.


(emphasis mine)

Randy, be proud.

David Matthews: when you dismiss "everyone on the political left", you leave even libertarians like me little choice but to discount the rest of what you say as at least inspired by partisanship. Just FYI.
1.17.2006 2:40pm
eddie (mail):
David:

That's a dual edged sword he is wielding. Does that mean that one day, perhaps we can call it Consitution Returning from Exile Day, when such "expansive" grants of authority have been rolled back, allowing the free market to define what's accepted or not, Justice Scalia would uphold this decision?
1.17.2006 2:41pm
Tyrone Slothrop (mail) (www):
Clearly, he's using his dissent to point out the inconsistency of the so-called left wing of the Court.

Where's the inconsistency? He's addressing a constitutional question that the majority could simply ignore, given its reliance on statutory interpretation.
1.17.2006 2:46pm
John McCall (mail):
That's a dual edged sword he is wielding. Does that mean that one day, perhaps we can call it Consitution Returning from Exile Day, when such "expansive" grants of authority have been rolled back, allowing the free market to define what's accepted or not, Justice Scalia would uphold this decision?


I think you mean Justice Thomas -- and yes, judging by his opinion and ignoring your snark about free markets, Thomas would probably have sided with the majority here if Raich had been decided otherwise.
1.17.2006 2:49pm
Mr Diablo:
Why is everyone going so easy on Nino? National consensus law nearly made him blow a gasket in the death-penalty-for-minors case, and in this dissent today, like in his oral argument, he is insisting that the authors of the federal law in question surely meant to not permit state-sanctioned assisted suicide (even though, they didn't specifically say so, and there are zero impediments stopping the Congress from trying to pass such a law today).

What ever happed to the Justice Scalia who wrote, in all caps, something like, "THE LAW MEANS WHAT IT SAYS" ? Of course, that was when he didn't want the majority to read-into the law what he did not think should be read into the law.

It seems Scalia was caught with his pants down on this case. Thank god it was only his intellectual pants.
1.17.2006 2:56pm
Nunzio (mail):
These statutory interpretation cases are usually a mess. Judges on all sides tend to employ whichever of the 144 canons of statutory construction they like to reach whatever result they like.

Here the canon of construe statutes narrowly to respect state sovereignty in an area of "traditional state concern" beat the canon of defer to the agency who interprets and implements the statute.
1.17.2006 2:57pm
David Matthews (mail):
I guess I don't think of libertarians as being on the "political left." (That was, in fact, the reason I added the word "political.") And I shouldn't have said "everyone." But far too many people who could learn a lot from Justice Thomas (and might find many places where they agree with him) have decided to dismiss him out of hand, using defamatory comments like:

"I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I just don't think that he's done a good job as a Supreme Court justice."

(which comes of course, from Sen. Harry Reid.)
1.17.2006 3:03pm
Gordon (mail):
There is "inconsistency" all over the map with the justices:

1. Stevens, Souter, Ginsburg, Breyer: After admirably (though, in my opinion, mistakenly) holding to their Commerce Clause principles on Gonzales v. Raich in the face of quite different ideological facts, they shift course and side with Oregon in this case.

2. Thomas: After admirably holding to his federalist principles in Gonzales v. Raich in the face of different ideological facts, he abruptly shifts course with his petulant charge of majority hypocrisy and sudden interest in stare decisis in the Oregon case.

3. Kennedy: After reneging on federalism when he joined the majority in Gonzales v. Raich, he returns to the federalist fold on this one.

4. Scalia: Showing consistency on the Raich and Oregon cases, he turns his back on federalism, perhaps coincidentally in cases with quite different ideological facts from Lopez, Morrison, SWANCC, etc.

Discounting Roberts, there is only ONE justice who has remained true to HER federalist principles in both past two decisions AND in these two decisions. You know, Sandra Day O'Connor, that supposedly inconsistent and flighty decision-maker so scorned by academics for her inconsistency and evolution as a justice?

We will miss her on the court. More than we now know.
1.17.2006 3:12pm
Gordon (mail):
In my 2nd to last paragraph above, it shoudl read "federalist positions in both past (delete TWO) decisions ...
1.17.2006 3:15pm
Houston Lawyer:
I believe the court has been quite consistent. The government will be denied the power to criminalize a killing, so long as a majority of the court don't value the life being terminated.
1.17.2006 3:25pm
George Clark (mail):
How can this decision be reconciled with the medical marijuana case? Can anyone help?
1.17.2006 3:32pm
The NJ Annuitant (mail):
I think Justice Scalia got it right in this case as well as in Raich. While I don't love the Federal policy in either, I do think that both instances are within the regulatory reach of the Federal government. I wonder how the majority will go when a state votes itself out of the Federal regulatory scheme in an instance that is not intangled with the culture wars.
1.17.2006 3:34pm
lee (mail):
My opinion of Justice Thomas(initially very low)rises with each decision. He switched sides here to show the inconsistency("a mere seven months ago")in the rest of the Court. All the legal yadaya aside, the court says federal law overules state law(Raich)and federal law does not overule state law(Oregon), but what can you expect from a Court that can't even read "public use."
1.17.2006 3:34pm
Justin (mail):
I suggest those who are determining the net worth of moral values of the judges should read the statutes in question and do some research before noting who and what are results oriented judging.

That being said, I was expecting this to be 8-1 (with only Scalia dissenting). That Thomas dissented in order to take a cheap potshot at Raich doesn't particularly bother me, though as mentioned by others, I don't think its fair to say that potshot requires a dissent or has anything useful to say about the majority's outcome in this case under the reasons given by the majority.

That Roberts dissented bothers me. It implies a very broad reading of Article II power, including the interpretative rights of Article II officers, far beyond those provided in Skidmore and Chevron. Here, the statutory language of the CSA is silent on what the definition of "medicine" is, but the clear indication of the statute as a whole is to leave that determination up to the states, with certain narrow exceptions not applicable here. That Scalia decided to interpret it "de novo" is somewhat odd and difficult to cubbyhole (as others mentioned), but taking that power away from the states, and to some degree relenting to the AG's interpretation, is a step towards Article II power that goes far beyond what I think the founders would intend. Alito is clearly in that mold, and such after this we soon will be 5-4 on an almost infinite deferral to the voice of the executive on a whole range of constitutional and statutory issues. Even during the Rehnquist court, we were never really much more than 7-2 on that issue.
1.17.2006 3:37pm
PersonFromPorlock:
Why is it always 'doctor-assisted suicide'? There are thirty eight states with the death penalty and in all thirty eight, the sentence is carried out by prison officers who seldom have more than an MSW; causing death evidently doesn't require an MD degree.

So why not 'undertaker-assisted suicide', which would at least allow for a certain economy of effort?
1.17.2006 3:38pm
Justin (mail):
"I think Justice Scalia got it right in this case as well as in Raich. While I don't love the Federal policy in either, I do think that both instances are within the regulatory reach of the Federal government."

NJ, I suggest that whether or not this instance was within the regulatory reach of the Federal government was not the question in this case, and that if it were the result would be 9-0 (given Thomas's "sucks to be you" styled dissent here, which I doubt he particularly stands by).
1.17.2006 3:40pm
Nevermind (mail):
It's physician-assisted suicide because that is the name used in the Oregon statutes. Gordon's analysis of the inconsistency of everyone but O'Connor is dead-on. The cursory initial look I've give the decision certainly doesn't impress me, other than seeing Scalia's dissenting comments opening the door for nearly any federal action not specifically forbidden in the Constitution.

As a former Oregonian who voted for this initiative twice, I'd also add that I hope this lays this issue to rest for the remainder of the Bush administration at least.
1.17.2006 3:45pm
Trevor (mail) (www):
It's not primarily a question of federal vs. state law, but a question of branches in the federal government. It seems clear that the majority here would have followed <i>Raich</i> if Congress passed a specific law outlawing assisted suicide, but refused here to permit the Attorney General, an executive actor, to take that action unilaterally. They think the statute Congress passed doesn't give him that authority. This is a question about executive power, not federalism.
1.17.2006 3:46pm
Justin (mail):
Thank you, Trevor. I obviously concur in your analysis.
1.17.2006 3:48pm
Greedy Clerk (mail):
Stevens, Souter, Ginsburg, Breyer: After admirably (though, in my opinion, mistakenly) holding to their Commerce Clause principles on Gonzales v. Raich in the face of quite different ideological facts, they shift course and side with Oregon in this case.

That is just simply untrue. They held in Gonzales that Congress has the power to criminalize the use of marijuana, even if a state passes a law saying that it is legal for medical purposes. Here, they hold (essentially) that the Congress has the power to criminalize assisted suicide, but that it did not do so and thus Ashcroft's actions in overruling on his own a duly passed law of the State of Oregon were void and should not be given effect.

Please explain why all four of them voted to reverse in Washington v. Gluckberg (if you even know what that case is) if you think they are such hypocrites. Note further that both Scalia and Thomas joined in the lead opinion in Glucksberg which basically said that these things should be left to the states, where there is a democratic debate going on. Well, once that debate went the way they disliked, all of a sudden they find a law that was on the books at the time of Glucksberg to find that, in fact, they were just kidding -- no democratic processes in the States, this has already been decided. Hypocrites.

Perhaps the best hypocrisy from this case (and I borrow from Publius at Legal Fiction) is this line from Scalia: "Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible." Really now? I don't disagree with the statement, but please substitute "violence against women" with "assisted suicide" and explain why the difference. . . . . Still waiting for that explanation. It's clear that Scalia has revealed himself in the federalism decisions to simply be making normative judgments about what laws he likes, and what laws he dislikes. None of the other members of the Court have been so revealed like Scalia (see, e.g., OConnor, Rehnquist and Thomas in Raich). We will have to wait and see with Roberts.

1.17.2006 3:50pm
Justin (mail):
PS - I do want to point out that although Thomas dissented seperately to yell hypocrite (which is somewhat odd, because none of the majority's arguments was compelled in the slightest by Raich, as Trevor and I have both noted, but hardly a big deal), to get to the issue he had to agree with Scalia that the AG had the power to make such a statutory interpretation in the first instance. Thus "5-4" instead of "6-3" on the Art II issue, and "8-1" (in favor of granting commerce power to regulate) instead of "9-0" on the Commerce Clause issue.
1.17.2006 3:51pm
Dilan Esper (mail) (www):
On Thomas:

I don't think there's anything terribly unprincipled about him dissenting on the ground that Raich may be wrong, but it's the law, and if the Commerce Clause power extends to this activity, then the statute doesn't preclude the particular regulation that Ashcroft enacted.

But he seems mighty quick to accept that Reich precedent when we are talking about a practice that offends his religious beliefs (assisted suicide), isn't he? Remember, Thomas has repeatedly REFUSED to accept the Commerce Clause decisions of the 1930's and 1940's, which are clearly settled law, even after they have been reaffirmed by the Court. He has also repeatedly refused to accept the Court's takings clause / public use decisions, which have also been repeatedly reaffirmed. Suddenly, Thomas is a new convert to stare decisis. Isn't that suspicious?

As for Scalia, it seems to me that this is a classic example of how you can never attain the "neutral principles" that Bork, Wechsler, and Scalia espouse. Behind his "neutral principle" is an assumption that of course assisted suicide isn't a legitimate medical purpose. It's killing people! He doesn't even seem to recognize that this is exactly the contested principle in this case, and that there's no way to be "neutral" about it.
1.17.2006 3:51pm
Justin (mail):
PPS - by 5-4, I meant with Alito on the court. Currently it seems to be 6-3 agaisnt broad granting of power to Article II officers to interpret the law as they see fit.
1.17.2006 3:52pm
Nunzio (mail):
"I suggest those who are determining the net worth of moral values of the judges should read the statutes in question and do some research before noting who and what are results oriented judging."

Justin, please provide us with any Supreme Court case in which the majority relied on the "traditional state function" to shoot down an administrative agency's reasonable interpretation of an ambiguous statutory provision. I think you'll find this is the first one. Gregory v. Ashcroft could be somewhat on point, but the EEOC doesn't have intepretive power.

This is another example of the make-it-up-as-we-go-along way of judging. I'd be surprised if this new rule of reading statutes catches on.
1.17.2006 3:53pm
Greedy Clerk (mail):
One more comment: Scalia's and Thomas's dissents both proceed on the complete fallacy that the Court's ruling was of a constitutional dimension. I have no doubt -- none -- that if Congress passed a law criminalizing assisted suicide, all in the majority -- with the possible exception of Sandra Day O'Connor given her vote in Gonzales -- would vote to uphold the ban as a legitimate use of the Commerce power.

Scalia's dissents get old, and it appears that he just wants to mock the other side always. Recognizing that the majority's opinion, when viewed as a matter of statutory interpretation, was eminently reasonable, he has to basically lie to his audience and say it was a constitutional holding and thus mock it as such. Why not just write a respectful dissent for a change that read something to the effect of, "Hey, I disagree with the majority, here's why, but I am not saying they are idiots for coming out the other way." G-d help us all if the Supreme Court is ever televised in his tenure, his ego will go through the roof as he (like Kozinski when the recall hearing was televised) will filibuster arguments to prove to the audience how he is the smartest Justice of all times.
1.17.2006 3:57pm
Greedy Clerk (mail):
Does anyone of these people defending the dissents actually believed that at the time of the CSA Congress actually thought they were giving the AG the right to unilaterally overrule state law on the permissibility of assisted suicide?

Didn't think so. Thanks for coming out, people. We have some great consolation prizes for you.
1.17.2006 4:00pm
Half Sigma (www):
It's obvious that Thomas is dissenting in order to call out the majority as hypocrites, and I wrote a more detailed post about it at my blog.
1.17.2006 4:02pm
Greedy Clerk (mail):
Dilan, in defense of Thomas, he often writes concurrences saying that he disagrees with precedent compelling a certain result, but nevertheless concurs on force of precedent. It is quite common for him -- moreso than any other Justice currently sitting on the Court.

Take this as a rare occurence to see me defending "Justice" Clarence Thomas who I have zero intellectual respect for after reading his silly, but dangerous, dissent in Hamdi v. Rumsfeld. Perhaps the worst opinion I have read by ANY judge ever (and yes that includes Plessy and Dred Scott and Korematsu).
1.17.2006 4:03pm
Gordon (mail):
Greedy Clerk: You are engaging in precisely the sort of hair-splitting and jesuitical reasoning I am accusing seven, and possibly (Roberts) eight of the nine justices of using. It's telling that you can see the hypocrisy laden in Scalia and Thomas' positions on this issue, but not the hypocrisy of your "favorite four."
1.17.2006 4:05pm
Justice Fuller:
Discounting Roberts, there is only ONE justice who has remained true to HER federalist principles in both past two decisions AND in these two decisions. You know, Sandra Day O'Connor, that supposedly inconsistent and flighty decision-maker so scorned by academics for her inconsistency and evolution as a justice?

We will miss her on the court. More than we now know
.

Keep in mind that when you flip a coin twice, there is a 50% chance that the result will be the same both times.
1.17.2006 4:06pm
Greedy Clerk (mail):
: You are engaging in precisely the sort of hair-splitting and jesuitical reasoning I am accusing seven, and possibly (Roberts) eight of the nine justices of using.

Please. That "hair splitting" that you cannot see was the issue presented in the case. Thanks for trying however. If you want me to take your assertions seriously, please answer my questions re Glucksberg. Until then . . .

1.17.2006 4:08pm
Justin (mail):
Nunzio wrote:

Justin, please provide us with any Supreme Court case in which the majority relied on the "traditional state function" to shoot down an administrative agency's reasonable interpretation of an ambiguous statutory provision. I think you'll find this is the first one. Gregory v. Ashcroft could be somewhat on point, but the EEOC doesn't have intepretive power.


Um, I don't think that's here or there. What is relevant here is that the AG is not an agency under the APA or likewise statutory scheme. Congress has not delegated the AP any right to interpret the CSA, as reasonable or not as such, and thus what the AG finds to be reasonable is irrelevant. If this was the interpretation of the FDA rather than the AG, then I think it's a somewhat more interesting question.
1.17.2006 4:10pm
Greedy Clerk (mail):
I think Justice Scalia got it right in this case as well as in Raich. While I don't love the Federal policy in either, I do think that both instances are within the regulatory reach of the Federal government.

Um, the issue in this case was NOT whether Congress has the power at issue; it was whether Congress exercised that power. Please, that is a very, very significant difference.

Congress, undisputably has the power to criminalize interstate traffic in oranges -- it has not however exercised this power. So if someone was charged with the "crime" of moving oranges into Nevada from California, and the case reached the Supreme Court, the Court would throw out the indictment. See the difference. That ought to explain it to people who can't see how this squares with Raich. Congres CAN criminalize assisted suicide tomorrow if it wants. Go lobby Congress if you think this is a pressing national need.

1.17.2006 4:16pm
Cornellian (mail):
So, is (Scalia) accepting that, should another, say, 25 (30?) states eventually concur, and, perhaps, the AMA expands their definition, that objectively, Things Have Changed? Put another way, he seems to be arguing that the popular will of Oregon is trumped because many other states haven't yet considered the question, and by the way, this guild agrees with me. That seems like he's setting the stage to have his reasoning used against his judgement at a later date.

This would be the same Scalia who complained that gender discrimination in some states couldn't be relied upon by the feds to uphold nation-wide legislation because there was no "guilt by association" that allowed the legislation to be sustained in states where such discrimination was not so proven. Once again, Scalia shows himself to be more concerned with his policy preferences than with consistency.
1.17.2006 4:18pm
Mr Diablo:
Greedy, great posts and you are exactly right.

The nonstop cries of "hypocrisy" aimed at the "liberal four" following the Raich case, is an attempt to confuse the issue and make Scalia's specious grounds for dissent seem consistent. Scalia has to rephrase the majority's reasoning into something it is not in order to pretend he's still a text-fearing jurist, and not trying to craft the law into the meaning he desires.

Here we have a non-specific statute and an attempt to use that law as an executive power-grab to invalidate state laws that do not run afoul of the constitution or and federal statute. This is not a federal law that clearly says "no marijuana."

That anyone can look at this case and at Raich and call it "hair-splitting" suggests an incomplete legal education -- that hair is as broad as a board.
1.17.2006 4:29pm
Greg Antrim (mail):
Thomas did note in his dissent that the Doctors did not argue the Raich issue. He said in the footnote that at oral arguments they accepted Raich. Thomas's acceptance of their position (even though he disagrees with the holding in Raich) is based on their capitualation not his own ideas.
1.17.2006 4:30pm
Dustin R. Ridgeway (mail):
If this is so, why is Scalia hailed as a hero by the conservative/libertarian Right? If Scalia only embraces federalism, in so far as it suits his policy preferences, how in this respect is he different from the ostensibly liberal Justices he routinely mocks &insults?
1.17.2006 4:30pm
Gordon (mail):
Greedy Clerk: Glucksberg was a completely different case because it involved the issue of substantive due process and had very little to do with federalism.

Was that erudite enough for you?
1.17.2006 4:33pm
DaveK (mail):
Tyrone Slothrop, Half Sigma, et al.:

If Justice Thomas's sole reason for dissenting is that, in his view, the proper analysis is that the federal government lacks constitutional power to interfere with Oregon's pro-assisted-suicide law, why is his opinion a dissent rather than a concurrence-in-the-judgment?

Is the argument that he's following Raich even though he disagrees with it? It seems to me as though he has only two choices: (1) call for Raich to be overruled, and dissent on constitutional grounds; (2) follow (or ignore/distinguish) Raich, and reach the statutory and regulatory interpretation/deference questions.

How can he have it both ways? (Scalia and the majority both did (2); they just disagreed about those statutory and regulatory issues.)
1.17.2006 4:50pm
Stephen C. Carlson (www):

Justice Thomas actually distinguished Raich from Gonzales as follows (p. 4, n.2 of dissent):


Here, by contrast, the respondent-physicians are active participants in the interstate controlled substances market, and the drugs they prescribe for assisting suicide have likely traveled in interstate commerce. If the respondents in Raich could not sustain a constitutional claim, then a fortiori respondents here cannot sustain one.
1.17.2006 4:58pm
Greedy Clerk (mail):
GOrdon, under your superificial, results-oriented analysis of the Justices, I would say your "reply" re Glucksberg is hair-splitting. You are going to have to do much better than that.

Further, tell me, wise one, why the difference between Congress not enacting a law, and Congress not having the power to enact a law is simply "hair-splitting"? Sounds like you are a graduate of the George W. Bush School of Law -- you know, the kind that doesn't like judgifying.
1.17.2006 5:06pm
Greedy Clerk (mail):
why is Scalia hailed as a hero by the conservative/libertarian Right?

Your question includes a serious error that once corrected will in fact answer the question. The "conservative/libertarian Right" is not a uniform movement by any means. Broadly speaking, there are the "conservatives" and the "libertarians." To the conservatives like National Review, Pat Robertson, George W. Bush, and others who, for one reason or another, choose to embrace the agenda of the extreme right-wing evangelical, political (mainly Southern) Protestants, Scalia is a hero. These people care about results, and Scalia (at least in his later years) gets them: you want Bush to be Prez? Got it. No dope for medical purposes? Got it. Prayer in schools? Got it. No evil lawsuits against rapists? You got it. Internal consistency? Not so much.

To the libertarians (and I am speaking in generalities), Scalia has sort of fallen off after Raich. See Randy Barnett's criticisms of him for example. Oddly enough, Thomas seems to be more admired by the libertarians, which frankly shocks me given his "opinion" in Hamdi v. Rumsfeld, which would seem to me (although I am no libertarian) be much more offensive to libertarian values than Scalia's vote in Raich.

1.17.2006 5:14pm
arbitraryaardvark (mail) (www):
I hope we'll be hearing from Mr. Barnett at some point.
1.17.2006 5:48pm
nunzio (mail):
Greedy Clerk,

Why are so disparaging and condescending in your comments? You remind me of Nietzche. Are you also a paranoid invalid?
1.17.2006 5:51pm
Tyrone Slothrop (mail) (www):
If Justice Thomas's sole reason for dissenting is that, in his view, the proper analysis is that the federal government lacks constitutional power to interfere with Oregon's pro-assisted-suicide law, why is his opinion a dissent rather than a concurrence-in-the-judgment?

When he says that that's water over the dam, he's trying to say that that argument doesn't survive Raich. The Court declined to limit Congress's power.

Nevertheless, a question of statutory interpretation remains on the table here -- i.e., assuming as we now must that Congress could ban doctor-assisted suicide in Oregon, is that what Congress did?

Scalia writes his dissent as if the answer is, patently, "yes."

Further to what someone (Greedy Clerk?) was saying above, another way to think about what the Court was doing here is that they were using statutory interpretation to avoid the difficult constitutional problems (although maybe not so difficult after Raich). I.e., if Congress wants to interfere with the way Oregon regulates medicine, it's going to have to do so very clearly, instead of using ambiguous language and hiding behind the decision of the Attorney General.

Although I don't think anyone in their right mind thought that Congress was intending to permit the Attorney General to do what he did.
1.17.2006 6:11pm
Mr Diablo:
Greedy, you are forgetting that to most libertarians (white guys with too much time on their hands and 'half-baked' ideology) the right to smoke a lot of pot is much more accessible and important than the right to see counsel while locked in a cage under the Caribbean sun, or in a brig in some unknown state.

The chance that a bunch of selfish guys from the woods of New Hampshire or from the law library of the University Chicago are ever going to deal with a "war on terror suspect" in a meaningful, non-intellectual masturbation way, is nil.

Live high or die.
1.17.2006 6:19pm
anonymous22:
Like most Kennedy opinions, this one makes little sense. And, again like many Kennedy opinions, it is reasoned in such an idiosyncratic way as to function as a sort of restricted train ticket: good for this case only. The 9th Circuit ruling, as summarized in the Court's opinion, sounds much better reasoned than Kennedy's opinion, and thus I can't understand why the SC granted cert in the first place except to rest the decision squarely on statutory grounds so that it does not create a quasi-precedent for a further expansion of the Gregory/New York federalism rulings. So Kennedy's refusal to confront the constitutional issue is probably what has Thomas ticked off.
1.17.2006 6:50pm
Cold Warrior:
Mr. Diablo said:


you are forgetting that to most libertarians (white guys with too much time on their hands and 'half-baked' ideology) the right to smoke a lot of pot is much more accessible and important than the right to see counsel while locked in a cage under the Caribbean sun, or in a brig in some unknown state.


As a white guy with too much time on my hands with an ideology that is fully -- but not over -- baked, I take offense.

First, I care little about pot smokers. I'm not one of them. But I cannot understand how my country got to this place. Let's say I'm in Indiana and I own a farm where hemp/marijuana grows alongside the the other weeds in my unplowed field. I can burn my field if I want to clear it. But I better not cut down one of the weeds, set it afire, and inhale deeply. That would be criminal.

Second, some of us (libertarians with a small "L") are really a subvariety of a very old type of ideologue: the social contract theorist. We're not terribly troubled by Hamdi's detention because Hamdi is only a "citizen" by virtue of an accident of birth and a misinterpretation of law. Neither he nor his forebears were participants in the great social compact that created the Bill of Rights. Nor was he invited in by the rest of us to live among us permanently. We are offended because by accident of birth he purports to get all the privileges of the social compact while assuming none of the obligations. He is not a citizen nor an invited guest. And if he wishes to do the rest of us harm, then I don't mind treating him as we would treat any other interloper.
1.17.2006 6:54pm
David M. Nieporent (www):
Why is everyone going so easy on Nino? National consensus law nearly made him blow a gasket in the death-penalty-for-minors case,
It made him blow a gasket because, inter alia, the majority was lying. There was no national consensus.

But he seems mighty quick to accept that Reich precedent when we are talking about a practice that offends his religious beliefs (assisted suicide), isn't he? Remember, Thomas has repeatedly REFUSED to accept the Commerce Clause decisions of the 1930's and 1940's, which are clearly settled law, even after they have been reaffirmed by the Court. He has also repeatedly refused to accept the Court's takings clause / public use decisions, which have also been repeatedly reaffirmed. Suddenly, Thomas is a new convert to stare decisis. Isn't that suspicious?
Not in the least. If you examine the pattern of Thomas's rulings, one thing is clear: he'll raise these issues in dicta -- as he did here -- but he won't overrule precedent when the parties haven't challenged it as part of their argument.
1.17.2006 7:09pm
Greedy Clerk (mail):
Why are so disparaging and condescending in your comments? You remind me of Nietzche.

I have never read Nietzche, but I think that's a compliment in some sense. As to why I am condescending, I only condescend to those who invite it. The arguments to which I responded struck me as an implied invitation to condescend.

Are you also a paranoid invalid?

Yes I am.

1.17.2006 7:24pm
Greedy Clerk (mail):
Neither he nor his forebears were participants in the great social compact that created the Bill of Rights.

Translation: He is an Arab.

Nor was he invited in by the rest of us to live among us permanently.

Hmm, but you were invited by the rest of "us" to live among us permanently? or your birth in this country was no accident? If the latter, I assume that you did something in a past life to "earn" your birth here. What else gives you a superior right to contest a charge (and that's all we are talking about, the right to contest a charge) than any other American citizen?

We are offended because by accident of birth he purports to get all the privileges of the social compact while assuming none of the obligations.

Even better: you assume something that Hamdi was NEVER given a chance to contest -- that he somehow broke the social compact. Under your theory, the Prez can take you -- yes you -- and throw them in a brig and say "he broke the social compact"; thus, he has no right to jack.

Otherwise, I found your comments quite interesting.

1.17.2006 7:33pm
Cold Warrior:
Translation: He is an Arab.
1.17.2006 7:40pm
Cold Warrior:
Sorry ... that was meant to be a block quote from Greedy Clerk.

I'd suggest the Greedy One take a look at Judge Posner's recent comments regarding the need to rethink birthright citizenship. After that, take a look at Judge Cassell's opinion (D.Utah) regarding the meaning of "the people" in 4th Amendment jurisprudence.

Hamdi has the slightest possible connection to the United States and its people.

The Greedy Clerk finds it hard to draw lines, so he (she?) simply stops trying.
1.17.2006 7:45pm
maurile (mail) (www):
I think a lot of people are misreading Thomas's dissent.

Thomas is not dissenting just to call out the hypocrisy of the majority. (He could do so in a concurrence.) Moreover, the hypocrisy he is calling out is not really based on a flip-flop of Commerce Clause jurisprudence. As he notes, the Commerce Clause was not at issue in this case (at least on appeal to the Supreme Court).

He is calling the majority out for reading the statutory language very expansively in Raich but narrowly in Gonzalez -- for giving wide deference to the executive branch's interpretation in Raich but not in Gonzalez.

It seems to me that Thomas would uphold a challenge to the CSA (as applied in this case) made on Commerce Clause grounds. But given that no such challenge is being made, he is inclinced to give wide deference to the executive branch's interpretation of the statutory language (as the majority did in Raich, but refuse to do here). He is not, therefore, being inconsistent by dissenting in both Raich and Gonzalez.
1.17.2006 7:48pm
Greedy Clerk (mail):
Cold Warrior: I respond again by noting that everything you think you know about Hamdi, he was never given a chance to contest. Thus, whether he only had a "slight" connection to the US may or may not be untrue. Under your theory, the President can designate you an enemy combatant because your citizenship is an "accident of birth" (your words, not mine), and then you have no rights at all, and cannot inform us all that you wrote a 300 word essay in fifth grade consenting to the Social Compact, and thus you deserve a right to contest what the President is doing. Don't be ashamed, you are in good company; one Justice of the Supreme Court agrees with you. If I have gotten your view wrong, please explain where and, more importantly, why. There is no need to cite Judge Posner, I am willing to listen to simple logic.

Otherwise, a reading of your post does in fact appear to be that because Hamdi is an Arab, he deserved no rights -- after all, "he and his forebears" did not consent to the "social compact", and you know that because, well, your evidence seems to be that he is an Arab. Very incisive.

1.17.2006 7:55pm
Cold Warrior:
Maurile--

Correct. There is nothing inconsistent about Thomas's opinions in Raich and Gonzalez.

Having suffered through the Alito warmup and hearing, we should all be familiar with the value of precedent, Speterian "super precedent," old-and-faded precedent, and freshly-minted contemporary precedent. And we should all understand that the Supreme Court will generally follow precedent no matter how old unless that precedent is nowadays embarrasing (Plessy, or the 17-year old execution of juveniles precedent), and that it will always follow precedent from the previous term.

So in Gonzalez, Thomas is simply saying: the value of consistency in the application of the laws trumps my own personal belief in federalism. Having decided Raich one way, there is no basis for the Supreme Court to do an about-face in Gonzalez.

And that is the definition of a principled decision.
1.17.2006 7:58pm
Cornellian (mail):
Nevertheless, a question of statutory interpretation remains on the table here -- i.e., assuming as we now must that Congress could ban doctor-assisted suicide in Oregon, is that what Congress did?

Scalia writes his dissent as if the answer is, patently, "yes."


A conclusion which is patently absurd and which cannot be reached on any principle of statutory interpretation which Scalia in other cases claims to adhere to. The statute only says that prescriptions must be for a legitimate medical purpose. The statute had not previously been applied to try to block physician assisted suicide, something squarely within state jurisdiction. Ashcroft as a senator tried to get an amendment passed to explicitly block the practice, but failed. When he became AG, he simply unilaterally declared that physician assisted suicide wasn't a legitimate medical practice regardless of whether it was under state law or not. Nothing in the statute gave the AG the power to issue regulations defining the meaning of that term. On this basis, Scalia thinks it's obvious that physician assisted suicide isn't a legitimate medical practice, even where state law explictly provides for it, and provides strict procedures for carrying it out, and where that law has been approved by the voters in a referendum, and even where nothing in the statute gives the AG authority to make that determination, and even where the AG's declaration was made purely unilaterally, without so much as a phone call to anyone in Oregon?

Yet another example of Scalia having no hesitation in tossing aside principle when it gets in the way of his policy preferences. I can see why that makes himi a hero to the religious right, but it certainly doesn't make him a hero to libertarians.
1.17.2006 8:01pm
Cold Warrior:
Greedy Clerk indulges his/her Arab fetish in a way that would make Andre Gide and Paul Bowles blush:


Otherwise, a reading of your post does in fact appear to be that because Hamdi is an Arab, he deserved no rights -- after all, "he and his forebears" did not consent to the "social compact", and you know that because, well, your evidence seems to be that he is an Arab.


Maybe he/she should take a look at the facts:

-- Hamdi's parents were both natives and citizens of Saudi Arabia

-- they came to Louisiana as nonimmigrant visitors; Hamdi's father was working on a short-term contract at an oil production facility in Louisiana

-- Hamdi was born during this visit

-- Hamdi returned to Saudi Arabia (with his parents) as a toddler.

-- He did not return to the United States, or make any voluntary attempt to exercise his rights and obligations as a U.S. citizen, until he was captured with a Soviet-issued weapon on the battlefields of Afghanistan.

-- After leaving the USA as a toddler, Hamdi did not return until the U.S. military brought him back in 2002.

-- when Hamdi was released and returned to Saudi Arabia (having relinquished his U.S. "citizenship") he refused to provide any explanation of what he was doing in Afghanistan. Clarification: he would not even answer a CNN reporter's simple question about why he was in Afghanistan. Simply google "Yasser Hamdi" and you will discover these facts.

I don't care if Hamdi is an Arab. Shoe bomber Richard Reid is not an Arab. [Greedy Clerk's knee-jerk response: "Oops, I always mix that up ... I meant to say, "Muslim."]

He was captured on the battlefield. If he had been kept in a camp in U.S.-controlled Afghanistan, would he have a right to file a habeas petition? Does the Greedy Fetishist think that hostilities had ended in Afghanistan at the time Thomas wrote his opinion in Hamdi?

Or is the Greedy Clerk just another annoying reflexive Bush hater of the don't-bother-me-with-the-evidence variety?

(Disclosure: I did not vote for Bush, and I have been very vocal in other threads on this blog in criticizing Bush policies.)
1.17.2006 8:10pm
Greedy Clerk (mail):
ColdWarrior, as I am accusing you of rather blatant racism, which I think you are (consciously or not) clearly guilty of, let me explain further. You state: "We are offended because by accident of birth he purports to get all the privileges of the social compact while assuming none of the obligations."

This logic is equally applicable to many who did things much worse that what Hamdi was ever accused of doing. For a few examples, I think Jeffrey Dahmer or Timothy McVeigh certain "purport[ed] to get all the privileges of the social compact while assuming none of the obligations." Yet, they are of course entitled to be heard on charges before we punish them quite severely (and deservedly I might add). So, the key difference between McVeigh and Dahmer on the one hand and Hamdi on the other has nothing to do with violating the social compact; after all, every criminal violates the social compact and that's why they get thrown in jail, put to death or otherwise punished.

Rather the key statement in your phrase is "by accident of birth." Again, McVeigh and Dahmer, like other criminals, are or were here because of an "accident of birth" -- they certainly did not earn their citizenship after some rigorous test. But implicit, and well-understood, in your statement is that Hamdi is an Arab -- he is not white, and his "forebears" (your words, not mine) did not help us create the "social compact."

Sounds blatantly racist, and I think it is. Again, show me the fallacy in my logic, without going to a cliche such as "The Greedy Clerk finds it hard to draw lines, so he (she?) simply stops trying" and without bringing up big scary names (after all, that Posner wants to rethink birthright citizenship in the democratic and/or legal process is entirely irrelevant to the question of whether the President can unilaterally deny rights to citizens). I doubt you can show any such fallacy, and I would suggest you think twice about your statement, and the many assumptions upon which it rested. You may learn something. -- GC
1.17.2006 8:10pm
Greedy Clerk (mail):
Again, everything you list in your little post ColdWarrior was never brought out in a court of law where Hamdi had a chance to contest it. Please respond to my arguments about why your logic does not apply to you and gives the power to the President to detain you and declare you an enemy combatnat; you have not even attempted to do so yet, perhaps because you could not. Your "logic" was fallacious and rested on racist assumptions -- it was revealed as such by your failure to even contest any of what I have said after asking several times.
1.17.2006 8:14pm
Greedy Clerk (mail):
Greedy Clerk indulges his/her Arab fetish in a way that would make Andre Gide and Paul Bowles blush

?

Or is the Greedy Clerk just another annoying reflexive Bush hater of the don't-bother-me-with-the-evidence variety?

Where is their a "reflexive Bush hatred" in my arguments???

(Disclosure: I did not vote for Bush, and I have been very vocal in other threads on this blog in criticizing Bush policies.)

And that is relevant to what?

I think Cold Warrior's posts should answer the question by someone above about why I condescend sometimes -- some people just ask for it.

1.17.2006 8:21pm
Mr Diablo:
Cold Warrior, I'd respond, but it seems you started talking about accident of birth. Which of course is how everyone got everywhere. Might as well base your argument on the Earth revolving around the Sun or around libertarians not really caring about social freedom, just cash.
1.17.2006 9:24pm
Cold Warrior:
Greedy and Diablo --

I am not arguing that the Bush Administration's classification system is correct, or even rational. But let's think about this:

-- Greedy says Hamdi should have been afforded the opportunity to challenge the Administration's finding that he was an enemy combatant. Greedy doesn't say what tribunal should hear this challenge, but it's obvious s/he thinks the federal district court is the right place, and a habeas petition is the right vehicle. Why? If he had been a regular uniformed soldier captured on the battlefield would he have a similar right of petition to the U.S. federal courts? If the answer is "yes," please explain why an irregular combatant should be afforded more procedural protections than an ordinary POW. This is where critics like Greedy get caught up in the citizenship issue. There's a constant drumbeat: "Bush thinks he can lock up citizens indefinitely without providing them lawyers or access to the courts." But citizenship doesn't matter here. He was fighting for the enemy forces. So was John Walker Lindh. And it wouldn't have bothered me one bit if the Administration had decided to treat Lindh as an enemy combatant rather than as a criminal. In reality, he was probably both. And guess what: he's not an Arab. (This is the point of my Arab Fetishist comment: Hamdi's Arab ethnicity is interjected into the discussion as a convenient conversation stopper -- racist! -- when it really has nothing to do with the analysis.)

-- Well, then, what about our other citizen-"combatant," Jose Padilla? Perhaps it will surprise you to discover that I think his detention as an enemy combatant was overreaching, poor policy, and very likely illegal. Padilla was not captured on the battlefield. He was stopped at an airport. He was not armed in any way, except in the most strained definition of "armed" ("armed with sketchy plans in his briefcase/head regarding the making of a dirty bomb?"). Again, his "citizenship" is quite irrelevant here. There is not a strong case to be made that he should be treated as an "enemy combatant," and it is inexcusable that the Bush Administration took several years (and the fear of an imminent loss in court) to reach the same conclusion.

So I've really explained all I need to explain. Hamdi: caught on the battlefield, fighting U.S. forces. Not a uniformed regular. An unlawful combatant by definition. Properly held by military forces until the cessation of hostilities. Totally irrelevant that he was born in Louisiana. I only mention the fact to rebut the ill-theorized notion that somehow he gets a jury trial because he was born in Louisiana. Totally irrelevant that he is an Arab. Totally relevant that he was trying to kill U.S. forces. A Department of Defense review is all that he was entitled to.

-- Jose Padilla. Not caught on the battlefield. Some evidence (we're not sure how compelling) that he was a member of a terrorist organization, or at least a fellow traveler. Caught at a U.S. airport. Not an enemy combatant. Perhaps a criminal conspirator. Totally irrelevant that he is a U.S. citizen by birth who has lived his entire life in the USA. Also irrelevant that he is hispanic.

-- John Walker Lindh. See Yasser Hamdi. Same situation. One may question why he was criminally charged instead of treated as an enemy combatant. This may say something about the Bush Administration; it says nothing about me. Irrelevant that he is a caucasian Marin-ite. Irrelevant that he is a Muslim. See also the Australian (Hicks) detained at Guantanamo.


But implicit, and well-understood, in your statement is that Hamdi is an Arab -- he is not white, and his "forebears" (your words, not mine) did not help us create the "social compact."

Sounds blatantly racist, and I think it is.


Now, after I've explained (and pointed out that your gratuitous references to Hamdi's Arab ethnicity and/or U.S. citizenship have no bearing on the issues at hand), would you care to explain exactly what "sounds blatantly racist?"
1.17.2006 11:05pm
Cold Warrior:
Oh, I missed a few other posts. Seems I've got the Greedy Clerk all riled up:


Your "logic" was fallacious and rested on racist assumptions -- it was revealed as such by your failure to even contest any of what I have said after asking several times.


The "failure to respond" is called "having a life." I've been known to take a few hours off every now and then for dinner, maybe to read a book, which brings me to:


make Andre Gide and Paul Bowles blush
?


I must remember not to make little literary jokes to law students.
1.17.2006 11:11pm
minnie:
That Roberts dissented bothers me.

Me too, unless there is something I don't understand about this case, which is very possible, because the above bloggers don't agree with each other as to what the basic thrust of this case is about.

But if it's about executive power, that's troubling and a bad omen.

Did Roberts say why he dissented? I can't open pdf files (temporarily) so cannot read the opinions. Are they in non pdf format anwhere?

Thanks.
1.18.2006 3:48am
Bob from Ohio (mail):
Libertarians in general want the right to do one of 3 things: have guns, have sex or do drugs. So, it is those cases that interest them.
1.18.2006 2:20pm