One conservative contradiction is that they claim to favor judges who don’t “legislate from the bench”, who obey the “will of the voters”, and who aren’t “judicial activists”. They also claim to favor limited federal government, respect for the plain meaning of the constitution, and judicial deference to law-making bodies, like legislatures. Typically this meant that conservative judges paid attention to the 10th Amendment to the constitution, which specifically reserves ALL RIGHTS to the states that aren’t EXPLICITLY given to the federal government in the text of the constitution.
The Rehnquist court led forcefully in the degredation of the 10th amendment, except when it achieved a result the judge wanted. For instance, Rehnquist had no problem leaving decisions up to the states when those states wanted to deny gay marriage or enforce anti-sodomy laws –because those are the positions he espoused.
However, when it came to allowing medical marijuana to ease the pain of the sick or the right of the terminally ill to die with dignity, Rehnquist, like an activist, twisted court reasoning any which way he could to ignore the plain meaning of the 10th amendment and to legislate against those voter-passed laws.
There were hopes that new chief Justice Roberts would break from this hypocrisy, specifically with regard to Oregon’s right to die laws, and become a true enforcer of state’s rights. The people of Oregon have twice affirmed through referenda that their terminally-ill citizens should have the right to die with dignity. The elected Oregon Legislature affirmed the will of the people and added a law providing that doctors and the pharmacists could not be punished for upholding the law.
When John Ashcroft became Attorney General he immediately set out to thwart the will of the people of Oregon. His tool was an administrative task assigned to the AG, which requires doctors and pharmacists to have a federal license to handle drugs. Ashcroft twisted the wording of the license requirements and announced he would destroy the career of any doctor or pharmacist who had the audacity to follow Oregon law.
The people of Oregon appealed and have won through the federal appellate court level. Alberto Gonzales, who replaced Ashcroft, continued his crusade to the Supreme Court. The arguments were the first heard recently by the newly-minted Roberts court.
Roberts immediately raised concerns that states could undermine federal regulation of addictive drugs. Roberts said the federal government has the authority to determine what is a legitimate medical purpose and “it suggests that the AG has the authority to interpret that phrase” to declare that assisted suicide is not legitimate.
David Souter said that it’s one thing for the government to ban date-rape drugs and harmful products but “that seems to me worlds away from what we’re talking about here.” On the other side, Roberts and Scalia appeared skeptical of Oregon’s claims that states have the sole authority to regulate the practice of medicine.
Roberts hypothetical and unrealistic slippery-slope is reminscent of Rick Santorum’s response to gay marriage by hypothesizing about the need now to legalize man-on-dog sex. Roberts and Scalia simply refuse to read the constitution like a strict constructionist should. If they did they would instantly recognize that the document does not give the federal government the right to control the practice of medicine. By default, that right is given to the states and the state of Oregon has spoken.
Roberts in his first case appears intent on ignoring the constitution, the will of the people, and the will of the legislature. Roberts, an unelected official, is poised to legislate from on high. He believes that the voters of Oregon don’t matter, the legislature of Oregon doesn’t matter, and the 10th amendment to the US constitution doesn’t matter. What matters is that Roberts is against death with dignity and he will do anything to stop it. That is the definition of an activist judge.
Balletshooz blogs at Alpha Liberal: Blogs, News, and Opinion.