Analysis: My Thoughts On The Assisted Suicide Argument
on Oct 6, 2005 at 12:53 am
I thought I would follow up on Lyle’s excellent summary of the assisted suicide argument with my own sense of how things went.
It seems clear to me that Oregon will win when the Justices vote on Friday, but there is a reasonable chance the case will have to be reargued after Justice O’Connor leaves and is replaced (which is very likely to occur before the case is decided). All the usual caveats apply. The Justices will meet and talk about the case, and one may persuade another. But in high-profile cases like this one (particular one argued after the long summer recess has given them lots of time to think), they have considered the case a great deal by the time they come to argument and tend to show their hands there.
The State had four solid votes at the argument — Justices O’Connor, Souter, Ginsburg and Breyer. Based on his previous writings, it seems clear to me that Justice Stevens will vote with them as well.
The federal government had two solid votes at the argument — the Chief Justice and Justice Scalia.
That leaves in play Justices Kennedy and Thomas. AMK said relatively little. In questioning Paul Clement, he described it as a “hard” case, including particularly because it is hard to describe these facts as involving the drug “abuse” contemplated by the statute. (Because this is going to be the principal theory of the putative majority, I bet [without great confidence] that that AMK will vote to affirm.) AMK seemed attentive to the government’s concern that there would be a slippery slope towards permitting other exemptions from federal drug regulation. He also suggested that an international convention referring to the judgment of the medical community cut against the federal government’s position. In questioning the State’s lawyer, AMK said that it seemed that this activity fell “precisely” within the authority to regulate the “dispensing” of drugs.
Justice Thomas said nothing, as is his practice. There is some chance that he will concur alone in the judgment affirming on the ground that the application of the Controlled Substances Act in this context violates the Commerce Clause. But I expect he will vote to reverse.
Here are the principal questions by some of the Justices:
The Chief asked one question of Paul Clement and five of the State. (Note to self, if JGR asks you a bunch of questions, you probably don’t have his vote.) He asked Clement whether there were other instances in which the Attorney General is able to displace medical judgments; Clement tried to give three examples, the upshot of which was that there aren’t. JGR pointed out to the State that Congress had heavily regulated drugs and that things “have changed” a great deal since Gibbons v. Ogden. (Note to Rick Garnett and other states-rights conservatives: told you so; the federalism “revolution” was actually more of a “petty insurrection” and George Bush has now officially put it down with the change from WHR to JGR. Sorry.) JGR expressed great surprise — as did everyone else in the room — at the State’s answer that a doctor could prescribe morphine (a Schedule 2 controlled substance) to make his patients feel happier without regard to the CSA. JGR wondered how it would be possible to maintain a “uniform” scheme of regulation if that were the rule. (This may be the argument that has the best chance of bringing AMK over.) JGR asked a detailed question about a regulation issued in 1971 that showed an impressive level of preparation by him in the circumstances.
O’Connor was all over Paul Clement (always a depressing experience for the advocate in a case like this). She said nothing for about half of Clement’s time (getting his hopes up, as S’Oc often asks the first question of the side she doubts) then asked a series of pointed questions, the upshot of which was that medicine is traditional state function and that Congress had given no indication of an intention to override state judgments.
Some commentary has suggested that Justice Breyer was conflicted. I disagree. It seemed to me that he was solidly on the State’s side, and when SGB asked questions of the State that seemed difficult he was actually giving a roadmap of points that might worry other Justices. This is how the morphine exchange started, but it went south quickly because the State refused to draw a line. So SGB was reduced to repeatedly asking – “If I disagree with you on the morphine example, do you lose?”; the State’s lawyer kept basically saying “yes” and SGB would ask again in the hope that the lawyer would clue in that the correct answer was actually “no.” (JGR and AS probably couldn’t believe the gift they were being handed by the State; I’m sure SGB could have throttled the lawyer.) In general, SGB seemed to agree clearly with the sense of SO’c that Congress wasn’t intending to address this issue in the CSA.
A couple of notes about the lawyering. Paul Clement was very, very good. I now think that he may be the best in the S. Ct. bar. The SG’s office may have the top three in Clement, Michael Dreeben, and Ed Kneedler. The State’s lawyer was very good in most respects; bad in just one, but one that could matter greatly. He was very principled, had an excellent demeanor, and knew the case backwards and forwards. But as I’ve suggested, he was totally unwilling or unable to draw a line in his case separating the use of controlled substances for assisted suicide from a slippery slope of prescribing innumerable drugs in violation of the CSA. The Justices, however, tend to save lawyers from themselves in this context; they will draw the line for him.
In the end, a precise prediction on the vote isn’t possible. The worst case for the State is reargument after SO’c leaves the Court. More likely, however, is that the decision is 5-3 with either AMK joining the majority or CT concurring separately on Commerce Clause grounds. I bet that JGR will decide to write himself and that this will be his first big dissent.
