Tuesday, January 17, 2006

Thomas's Dissent on Physician-Assisted Suicide

Good news: The Supreme Court has just upheld Oregon’s physician-assisted suicide law, saying it does not violate the federal Controlled Substances Act (CSA). Here’s the decision.

Interestingly, four justices who shot down federalism in favor of a more expansive interpretation of the CSA in Raich v. Gonzalez (the medical marijuana case) took the opposite position today. Those justices were Stevens, Ginsburg, Breyer, and Souter, who deserve praise for their good decision today but castigation for their inconsistency. Two justices, Kennedy and O’Connor, get points for both correctness and consistency, having supported federalism (and thus the narrow application of the CSA) in both cases. One justice, Scalia, gets points for consistency alone, as he took the wrong side in both cases. And even those points should be docked for inconsistency with Scalia’s expressed support for federalism in earlier cases. (Chief Justice Roberts joined Scalia's dissent, but wasn't on the Court for the Raich case.)

And then there’s the anomaly: Justice Thomas, who supported federalism and a narrow reading of the CSA in Raich, but took the opposite position today. Like David Beito and Radley Balko, I was perplexed, so I read Thomas’s dissent. The good news is that Thomas still believes in the right principles; the bad news is that he has bad strategy. Here’s the key passage (emphasis mine):
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)... But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States’ “ ‘traditional . . . powers . . . to protect the health, safety, and welfare of their citizens.’ ”2 Raich, supra, at ___, n. 38 (slip op., at 27, n. 38). The Court’s reliance upon the constitutional principles that it rejected in Raich—albeit under the guise of statutory interpretation—is perplexing to say the least. Accordingly, I respectfully dissent.
In short, Thomas deferred to the precedent set by Raich – a precedent with which he disagreed and that the majority implicitly rejected in the present case. This makes sense, if we take as given the Court’s decision in this case to ignore the issue of federalism and focus entirely on the matter of statutory interpretation. But why not force the federalism issue onto the table? Thomas may have thought he was doing so by writing a dissent, but a concurring opinion would have been the more appropriate vehicle in this case. That way, he could have affirmed what he clearly believed was the right choice on constitutional grounds, while shining a spotlight on four other justices’ inconsistency. I suspect this would have been a better strategy for rehabilitating the principles that were so damaged by Raich.


Greg said...

The only reason I can think of for writing a dissent here is that concurring opinions tend to get gloosed over, whereas dissenting opinions almost always get read, even by casual observers.

Back in law school it was nearly universal practice to read the majority opinion for the rule and relevant dicta, skip any concurring opinions completely, and then read the dissent for class discussion fodder. Maybe Justice Thomas wrote to get maximum exposure...

Jadagul said...

My read on Thomas's dissent (admittedly drawn from my debate experience, and not my legal experience, since I don't have any) is that he feels like Oregon dropped the constitutional argument. From the second footnote: "Notably, respondents have not seriously pressed a constitutional claim here...to the extent respondents do present a constitutional claim, they do so solely within the framework of Raich. Framed in this manner, the claim must fail...Respondents’ acceptance of Raich forecloses their constitutional challenge [emphasis mine]."

It seems like he's saying, "Oregon stipulated the Court's holding in Raich, so I don't have to evaluate that again. If you accept Raich, as Oregon does, then Oregon's claim is false."

Glen Whitman said...

Greg -- that makes sense, assuming the relevant audience is legal scholars. But the mainstream media definitely gets the wrong impression. In the L.A. Times, they didn't quote any passage indicating Thomas's discomfort with expansive federal power. They quoted a passage that sounded (out of context) like an endorsement of such power.

Jadagul -- that makes sense to me as a debater. But in a debate round, the goal is not to get the "right answer," but to choose who did the better argumentation. For that reason, it makes sense for debate judges to ignore arguments the debaters failed to make. But in a case before the Supreme Court, getting the right answer is the whole point. If Thomas wanted to make his decision based on federalism even if no one brought it up, isn't that his prerogative as a Supreme Court Justice? I suppose the answer depends on the question actually brought before the Court and how broadly it has been stated.

Jadagul said...

Yeah, I thought about that. And I tend to agree with some of what I've seen on Reason: if the other justices had split 4-4, he'd have written a concurrence. But he knew the 'right' side would win anyway, and so he voted that way to make a point. His footnote repeats three or four times that Oregon conceded the holding of Raich in argument; that implies to me that he considered the concession important.

Greg said...

If I had to guess I'd say Thomas cares more about the long-term (how the dissent is treated in law review articles and among legal academics, etc.) than on the short-term treatment in the media. Unlike politicians, he doesn't need to impress any voters or maintain a reputation for any particular point of view ("Re-elect me, and I'll vote for federalism."). His legacy will be written by legal academics, so to the extent that the act of choosing one opinion form over another has symbolic power, I think Thomas would choose a symbol that would mean something to them, even at the expense of confusion in the popular press.

But I could see it going either way. Maybe it didn't even occur to him. Who the hell knows?