Dissenting Thomas

Thomas' dissent is what's more perplexing to me here, since he's usually a pretty consistent federalist. The tension cuts both ways -- hasn't he flipped his position too? I haven't read his dissent, but WTF?

Puzzling to me, too. He seems to be saying, from a very loose reading on my part, that if Raich is good law, then this case is wrongly decided. They can't have it both ways.

I'll point out again, no matter what firestorms may come, he also abandoned federalism in his Kelo dissent.

Then why didn't he side with them on this one?? That makes no sense whatsoever.

"I think you're a bunch of hypocrites for deciding this one on stuff you rejected before, so I'm going to disagree with it for no reason!" :dunce:

I can think of a defense, nonetheless, but as I've not read the opinion in its entirety, I'm hesitant to do so now.

Here's Ed Brayton's take on Thomas's dissent (from http://scienceblogs.com/dispatches/2006/01/court_upholds_oregons_assisted.php):

Update: Having taken at least a cursory look at the three opinions, the most interesting one is the dissent of Clarance Thomas. I think he's absolutely correct when he says that the majority opinion in this case conflicts with their finding in Raich just last year (where Thomas was in dissent as well), but only on the narrow issue of the scope of the commerce clause authority of Congress. It's also interesting to note that, because of the Raich ruling, the state of Oregon likely decided not to argue agaisnt the CSA on constitutional grounds but on the narrower grounds of statutory interpretation and whose interpretation is due what level of deference. It sounds as though Thomas might have been open to a constitutional challenge in the case, but one was apparently not offered because the state of Oregon figured they couldn't win on that count.

"It sounds as though Thomas might have been open to a constitutional challenge in the case, but one was apparently not offered because the state of Oregon figured they couldn’t win on that count."

And that is truly sad.

Anyway I'm with b-psycho... why not just file a concurring opinion so that he could dissent without dissenting, as it were? This seems a silly way to go about pointing out hypocrisy.

I'm not sure. Perhaps it's considered dirty pool to decide a case on grounds not being offered by either side.

Or maybe he knew his vote didn't matter, and decided to dissent just to make a point.

Isn't there one other rather obvious possibility that no one seems to be considering, namely, that Thomas, Scalia (and perhaps Roberts, though it's a bit early to tell on that one) aren't really committed to federalism as a principle, but instead, like the liberals on the court, are happy to embrace federalism when it gets the result that they prefer and will dump it whenever it no longer suits?

Joe: I think that's extremely unlikely. Scalia's commitment to federalism is basically limited to demanding that congress make some attempt to connect a statute to interstate commerce through findings of fact. He's really just looking for a minor procedural hurdle. I can't imagine how that could be politically motivated. I also think it's unlikely that Scalia has a particular objection to laws that prevent the possession of guns in schools. I know the argument that conservative judges are just as political as liberal judges is popular, but there's just no evidence to support it.

Joe:
Scalia and Roberts, probably. But this is a bit out of character for Thomas.

Also, I think I've figured out the reasoning behind the majority opinion. See, because the people who requested assistance in suicide were dying, it's unlikely that they would have continued to engage in interstate commerce anyway. So the Feds have no authority to intervene here.

Scalia dissented because he's a religious conservative and religious conservatives don't like the whole notion of the right to die.

Isn’t there one other rather obvious possibility that no one seems to be considering, namely, that Thomas, Scalia (and perhaps Roberts, though it’s a bit early to tell on that one) aren’t really committed to federalism as a principle, but instead, like the liberals on the court, are happy to embrace federalism when it gets the result that they prefer and will dump it whenever it no longer suits?

The same thought crossed my mind as well.

Actually, a quick glance at the majority opinion suggests that the constitutionality of the Controlled Substances Act wasn't a factor in the decision. The question wasn't whether Congress had the power to ban the use of certain drugs for assisted suicide; it was whether Congress had given the Attorney General the power to prosecute such cases. Presumably the court would be fine with Congress giving him that power, but they don't believe he has it under the CSA as now written.

Thomas's dissent is at the end of the document linked above; here's the money quote:

I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure . . . 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." 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.

Why respectfully?

I'm with Thomas on this one, his dissent is telling the hypocrites in the majority what hypocrites they are.

Thomas is making the point that the Court cannot have it both ways. If Raich is correct (and by stare decisis it must be treated as law), then the Court must rule in favor of Gonazales in Oregon. Otherwise, the Court is making its own value judgment that assisted suicide is valid but marijuana for pain relief is not. Thomas's dissent is powerful in pointing out this hypocrisy (and thus the propriety of his dissent in Raich). It seems he could have concurred in the result and referred to his dissent in Raich for asserting the Controlled Substances Act was unconsitutionally applied to strictly intrastate activities. It would be interesting to know why he chose his path.

Scalia has been consistent in his limited federalism (he is no libertarian). His principle is that if Congress has enacted a comprehensive statutory scheme, then the Courts are not to second guess it. His opinions are consistent in Raich and Oregon.

Now, how the other justices can assert that use of controlled substances to hasten death is protected but use of controlled substances to relieve pain is not is beyond me.

Now, how the other justices can assert that use of controlled substances to hasten death is protected but use of controlled substances to relieve pain is not is beyond me.

Maybe they think it's OK to die as long as you hurry up with it and experience a lot of pain?

As a non- constitutional scholar, I think that the Court is implying that the dangers of allowing persons to seek pain relief with home grown cannabis, which might make some people not want to commit suicide outweighs any possible pain relief for these people. What is this great danger? Relaxing federal government control of this plant might “send the wrong message.” Haven’t you seen the movie Reefer Madness?

On the other hand, if the pain is so bad that patients do want to commit suicide, let the state decide docs can prescribe deadly doses of drugs so patients don’t have to use the Smith and Wesson approach.

Since people already have the right under the Second Amendment to blow their brains out and now the court had blocked the cannabis method of pain relief, how have these two decisions resulted in any net gain for suffering humanity? In my opinion the two cases should have been decided in precisely the reverse manner.

I believe that congress can re-write the law and still squash assisted suicide in oregon, and still have a shot at being in line with this ruling, since it was mostly a statutory matter, _provided_ that you believe that the Controlled Substance Act (or any other whim of Congress) is authorized by the Commerce Clause.

So, bearing that in mind, (and this is pure speculation), I believe what Thomas is saying to the "liberal" side of the court is somethin like this:

I personally don't think suicide is moral. But, I also don't think it's interstate commerce, since ... you know, it's not interstate and it's not commerce. Now when congress re-writes this law, if you want my vote, you are going to have to come back to planet earth on this commerce clause deal, because if we are just a bunch of social advocates deciding how to dish out our unlimited power, then hey, I'm a Catholic Republican. Whenever yall want to start being judges inerpreting a pretty plainly written constitution that clearly list a small set of enumerated powers, I'm here waiting.

Pretty damn brilliant IMHO.