John Roberts – Judicial Activist
Kevin Drum reports on the willingness of Justices Roberts, Scalia, and Thomas to overturn a state law in deference to something the Bush Administration wanted to do. William Branigin reports:
The Supreme Court delivered a rebuff to the Bush administration over physician-assisted suicide today, rejecting a Justice Department effort to bar doctors in Oregon from helping terminally ill patients end their lives under a 1994 state law. In a 6-3 vote, the court ruled that then-U.S. Attorney General John D. Ashcroft overstepped his authority in 2001 by trying to use a federal drug law to prosecute doctors who prescribed lethal overdoses under the Oregon Death With Dignity Act, the only law in the nation that allows physician-assisted suicide. The measure has been approved twice by Oregon voters and upheld by lower court rulings. Faced with lower court rulings against his position, Ashcroft brought the case to the Supreme Court on the day he announced his resignation in November 2004. The case was continued by his successor as attorney general, Alberto R. Gonzales. Chief Justice John G. Roberts Jr., dissenting for the first time since he joined the court in September, sided with the two most conservative justices – Antonin Scalia and Clarence Thomas – in voting for the minority view. At issue was whether the federal Controlled Substances Act, enacted in 1970 to combat drug abuse and trafficking, allowed the attorney general unilaterally to prohibit doctors in Oregon from prescribing regulated drugs for use in physician-assisted suicide, despite state law permitting them to do so. Writing the opinion of the court, Justice Anthony M. Kennedy said the federal law bars doctors from using prescriptions to engage in illicit drug dealing but that “the statute manifests no intent to regulate the practice of medicine generally.” Moreover, the Controlled Substances Act (CSA) relies on “a functioning medical profession regulated under the states’ police powers,” he wrote. “In the face of the CSA’s silence on the practice of medicine generally and its recognition of state regulation of the medical profession, it is difficult to defend the Attorney General’s declaration that the statute impliedly criminalizes physician-assisted suicide,” Kennedy wrote.
During the Alito hearings, the Democratic members of the Senate Judiciary Committee – using the wiretapping controversy as background – pressed Judge Alito whether the President could ignore the intent of Congress after a law has been passed. Alito hedged on this question. In other words, Alito would not say whether a President could simply ignore a law.
In this case, the President wanted to simply make up authority that Congress had not granted the Executive Branch. It would seem Justices Roberts, Scalia, and Thomas are not bothered by the excessive reach of the Executive Branch. If Alito has the same view, isn’t this another reason to not approve his nomination to the Supreme Court?
Update: Mark Kleiman has more criticism of the dissenting opinion written by Scalia.