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Death With Dignity: John Roberts Legislating From The Bench

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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.

Alphaliberal.comThe 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.

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Balletshooz blogs at Alpha Liberal: Blogs, News, and Opinion.

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  • Douglas Anthony Cooper

    Nicely argued.

    And it makes me nervous.

  • Rich Powers

    Any group in power will eventually descend into the depths of hypocrisy. Remember the GOP of the early 1990s, constantly rallying for states’ rights?

    Now that they control the government, the 10th Amendment suddenly is less important; Republicans only want states’ rights to matter if it fits their agenda. And it’s not that hard to guess what this Justice Department’s agenda is – Roberto Gonzalez said in a memo that the FBI’s war on legal (albeit obscene) porn is a priority for the government…

    Federalism, I think, is dying. Too bad, because it is a brilliant concept designed specifically to limit the power of the federal government AND allow for a diverse people to make laws that are tailored for their own states.

    Liberal states can pass liberal laws within their own borders and it has no bearing on the neighboring conservative state. Wow, imagine that! If you don’t think terminally ill patients should be able to “die with dignity,” then take it up with your state’s legislature. No one besides the people of Oregon should care about this.

  • RedTard

    Definition of an activist judge: One that doesn’t agree with you.

    The reach of the federal government has grown very large and far, far beyond the scope set forth in the constitution. Their are so many laws saying so many different things that anyone can read whatever they want into them. The supreme court has become nothing more than a miniature version of the senate with much greater power.

    Justices vote their political views and can always contort and twist some obscure law to validate their position.

    That’s my gripe, here is my solution (which will never, ever happen).

    If the nine supreme court justices, who have spent a large part of their lives studying the constitution and the law, cannot make a unanimous decision then we must assume that there is insufficient evidence to support either side. Basically, if they all can’t see it, then it must not be there. The unresolved issue would then be kicked back to our elected representatives.

    The majority decision of the Supreme Court would stand and within 2 years the congress would be forced to make an up or down vote on the issue. The majority vote of the congress would decide the issue and would be treated as any other law. Unanimous decisions of the court would be treated exactly as they are today.

  • Alethinos

    Excellent post Shooz… Glad to see this issue is being kept alive here. Issues such as this are going to bring to a head the culture war that is in the offing. I fear it is going to be ugly…

    The cold war is over… The war over minds and hearts – for the soul is on.

    I can tell you there is going to be a helluva shout raised here in Oregon if the SC does decide in favor of the Bush Adm., hypocritical, Christian fundamentalist agenda.

    On a odd, sad note (but a “uh huh” note too) the leader of a conservative Christian group here in Oregon – with some political clout, has been brought up on child molestation charges this past week – accused by his own family.

    God, save us from your most “devoted” servants.


  • Winston Jen

    Why make assisted suicide illegal? It’ll just go underground, making it harder to detect and harder for patients to get proper pain relief.

    Also, since juries rarely convict doctors for killing patients upon request, what’s the point in a law against euthanasia?

  • Dave Nalle

    Asking a question doesn’t necessarily define his position or the position he will eventually take. The case isn’t settled yet. Let’s see how he rules and how the final opinions are written up. As for the substance of his questions, he seems to be concerned about undermining the jurisdiction of the FDA, which makes him sound more like a Drug Warrior than an anti-death activist.


  • Winston Jen

    The War on Drugs needs to end. It causes more problems than it solves and imprisons a lot of nonviolent drug addicts.

  • Silas Kain

    Definition of an activist judge: One that doesn’t agree with you.

    Ain’t THAT the truth! If a judge complies with the will of the hard right, he/she is a moral, informed jurist. One of the primary functions of the judicial branch is to keep the other two branches of government in check. That includes insuring the adherence to the Constitution regardless of public opinion. The majority does not always rule and that is how it should be in a land of laws where the most marginalized are equal in its eyes.

  • Jonathan

    You have a mistake. Rehnquist voted for using medical marijuana in California. He also supported state regulation of the right to die. Scalia was the conservative state-rights justice who voted against the marijuana.