Roberts' First Big Case: The Oregon Death With Dignity Act

The Supreme court heard oral argument yesterday in Gonzales v Oregon, John Ashcroft's effort to use the federal Controlled Substances Act (CSA) to prevent doctors in Oregon from prescribing "controlled substances" for the prupose of assisting terminally ill adults to commit suicide. Links to some of the reporting on the arguments are provided below:

Washington Post
New York Times
LA Times
Chicago Tribune
Houston Chronicle
The Oregonian
Wichita Eagle (AP)
Slate.com
ProLifeBlogs.com

I do not pretend to have read all of these accounts yet. I do intend to, though, becuase I suspect there will be differences between the reports that will be interesting.

This is a case that fascinates me for a whole bunch of reasons:

First: It is one of those cases in which the "real" issue isn't actually before the court but nonetheless informs and influences everything the court does. The case is billed as a case about assisted suicide. And, at bottom, it really is. But technically, the only issue presented is whether John Ashcroft had the authority to "interpret" the CSA to bar prescription of controlled substances for purposes of assisted suicide. The Act itself doesn't address the issue, so the technical question is, given Congressional silence, who gets to decide: the feds or the states? But the answer to that question can never be divorced from the concrete implications. If the Court holds that it is the states who decide, then Oregon citizens, at least, will have the right to get physician assistance in committing suicide (under very controlled circumstances, of course) and there is significant potential that other states will follow Oregon's lead. If the Court rules that it is the feds that get to decide, then physician assisted suicide, at least via controlled substances, will be dead for the foreseeable future.

(As an aside, it is worth pointing out -- again -- the irony involved in a very conservative administration seeking to use federal statutes to limit state power. And, like the medical marijuana case, it is likely to result in the further irony that the Justices the Right so loves (Scalia and Thomas) are those most likely to rule against them while those they so hate (Stevens, Ginsburg, Souter) are the ones most likely to go with them. You see, in the end, it is the liberals on the Court who are in favor of broad federal power and it is the conservatives who believe in federalism.)

Second: The question of "who gets to decide" is a classic administratrive law question, and I am, and have been for nigh on 30 years now, an administrative lawyer. The process by which the court goes about resolving this issue and the criteria it uses to make its decision could well have implications for administrative law generally. For instance, in Chevron v. EPA, which is certainly the most important administrative law case in the last 25 years and one of the most important in history, the Court held that, where Congress has not spoken on a particular issue, the interpretation advanced by the federal agency charged with implementing the particular federal law at issue is entitled to "substantial deference," which effectiv ely means that the agency wins. In recent years, as the Court has become more conservative, it has backed away from Chevron a bit, holding that "Chevron deference" is appropriate only under certain circumtances; circumstances that arguably do not exist with regard to the Ascroft "interprative ruling" that lies at the core of Gonzales v. Oregon. Thus, there is some chance that Gonzales will either further erode Chevron or reaffirm the basic principle that the feds get to decide the close questions.

Third: The "real issue" -- to what extent should individuals have the right to make end-of-life decisions free from government interference -- is one I actually care about. Much more so that abortion, that right seem to me to be implicit in the liberty guarantees of the 5th and 14th Amendments, since, in the case of assissted suicide the "person" dying and the person deciding are one and the same. Unfortunately though, perhaps, the Supreme Court has already ruled that the Consitution's liberty guarantees to not create a right to assisted suicide. See Washington v. Glucksburg. However, since Glucksburg involved a State ban on assisted suicide, that case arguably leaves open the question of whether States can allow it, at least absent a clear federal prohibition. That is the issue presented in Gonzales.

Finally, and maybe most interesting of all: This is Chief Judge Roberts first "big" case, and it touches on all of the hot botton issues that he evaded so skillfully in his hearings: "right to life;" federalism (i.e. the power of the States vs the power of the feds); and the extent of the commerce clause (which provides the constituional basis for the CSA). Coming so early in his career as Chief Justice and so soon after his confirmation hearings, it will be fascinating to see how he himself rules and what he is able to do to sway the other members of the court.

I can hardly WAIT for the opinion.