VOLuntarilyConservative

I've read all three opinions in Gonzales v. Oregon, the SCOTUS case released today that let stand Oregon's popularly-created law that allows for physician-assisted suicide. Justice Kennedy, who grows less conservative by the day, wrote the majority opinion in the 6-3 case. Justice Scalia wrote a dissent which was joined by Chief Justice Roberts and Justice Thomas. Justice Thomas also wrote a short dissent of his own.

I say that I have read the opinions because a lot of what is being said about this case is - in my humble opinion - being assumed by those who haven't read the case. They assume that this is a victory for states' rights, a victory delivered by the liberals who suddenly embraced the argument for federalism because it suited the outcome they desired. Those same people chide Scalia and Thomas for abandoning their states' rights position, painting them as hypocrites. (For reference, see psychopolitik, Philosophical Oration, and The Republic of T, for starters, who have reacted by what the media is telling them instead of reading the opinion for themselves.)

Of course, this is all false. While this may have seemed like a states' rights case, it was certainly more of a case framed around the premises and previous cases involving administrative law. This was no great states' rights victory, nor was the popular vote of the citizens of Oregon even a factor in the Court's decision. Nor was there a victory for patient autonomy or a landmark decision regarding the rights of doctors. In fact, the chief argument between Kennedy's majority opinion and Scalia's worthy dissent was how this case and its factual background fit into the precedents of Auer and Chevron and the recently-decided Raich. In fact, Justice Thomas's dissent only focused on the legal gymnastics that the majority was accomplishing by taking a position starkly different from Raich - and all in eight short months. (Scalia also pointed out that Kennedy's search for definitions in the relevant federal statute might have been helped if he had actually looked to the definitions section provided by Congress, which, as Professor Cohen at UT used to tell me, is a good place to start.)

While this case may have looked like states' rights versus the right to life, it was more like the right of the Attorney General to define what is a "legitimate medical use." The majority said that he had no such authority. I can see their point, but why hand the decision for that definition over to the populace of Oregon or (even worse) the legislators of Oregon? If the question is as technical as Kennedy makes it out to be, shouldn't the group with the expertise - the doctors - make the decision? Yes, I am suggesting a vote amongst the doctors of Oregon as to whether they feel comfortable violating the Hippocratic Oath on a regular basis.



That's what it comes down to for me. As someone who was there (for a while), I am not a big fan of patient autonomy when it infringes upon the views and beliefs of the doctor. I have no problem with the medical community making this decision as a group, even if it probably would result in an outcome that I don't necessarily agree with. (Obviously, in this case, I would certainly hope that the doctors would uphold their oath (in whatever modern or classical form in which it was administered) and view death as the ultimate harm.)

This is an interesting example of how Kennedy is going to move into O'Connor's position as powerbroker. Many are focusing on Roberts' siding with the dissent and declaring his actions as lying (which, as I stated, is not the case here), but Kennedy is the one to keep an eye on.