Blogs > Cliopatria > Scalia and Thomas bid farewell to 10th Amendment

Jan 18, 2006 11:24 am

Scalia and Thomas bid farewell to 10th Amendment

Interesting Supreme Court ruling on Oregon’s assisted suicide law. The law was upheld by a 6-3 vote. Anthony Kennedy wrote the majority opinion. The three dissenters were Scalia, Thomas, and the new chief justice, Roberts. The transcript of the decision does not seem to be posted yet; I’ll put a link up later. For the moment I’ll assume the journalist descriptions are accurate.

On the face of it, the decision is a logical follow up to the Court’s 1997 decisions upholding the right of states to ban assisted suicide. This makes it a victory for states rights. As the late Chief Justice Rehnquist wrote in 1997:

"Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in an [sic] democratic society"

That two of the Court’s biggest supporters of states’ rights, Scalia and Thomas, dissented is an indicator that the growing division over “gates of life questions” is beginning to overwhelm conservative support for the tenth amendment. Perhaps states' rights are reserved for the righteous.

One more thing, Kennedy’s reasoning, as reported, is pretty narrow. He focused on the narrowness of the category of patients so empowered. He also suggested that it was an overreach for the Attorney General to do this unilaterally. This latter point leaves open the possibility for a different verdict if federal law specifically banned medical assistance in suicide cases.

Added January 18: Here is a link to Gonzales v. Oregon. The opinions begin on page 5.

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Oscar Chamberlain - 1/17/2006

I brought up my relative to give you a sense of where I was coming from. In no way did I mean to use her last days as an emotional trump card to still any arguments against me.

Oscar Chamberlain - 1/17/2006

Yes Ralph. And I think that is part of the sentiment behind the 1997 ruling I quoted in my original post in wihch Court ruled that there was no 14th Amendment right to assisted suicide.

However, in this case, a state government acted. When it did so it empowered a small set of people to seek out a physician to assist them in suicide. The physician cannot be coerced. Those people are already close to death. There is no known medical procedure that can change that.

Who here has been denied life, liberty, or anything else by the existence of that law?

PS Right now this topic is close to me. A few months ago my sister-in-law died after a long bout with cancer. She was a devout Christian, and despite the excruciating pain of the last few months, I doubt if she would have utilized assisted suicide even if Texas--fat chance--would have made it available.

But I cannot reduce giving people people in her condition such a choice to "life versus death." At that point the choice is how to meet death. I don't think it unreasonable for a state to give someone options in that situation. I do think it more than unreasonable for an Attorney General to twist laws banning the illicit use of drugs into a ban on states giving people that choice.

Ralph E. Luker - 1/17/2006

But it's in the legal tradition, Oscar. It's _life_, liberty, and the pursuit of happiness (or property) -- not death, liberty, etc.

Oscar Chamberlain - 1/17/2006

Both are abstractions. I suppose the question here is this. Is it good for jurists to leave their stated philosophy of allowing the states considerable discretion to shape public policy and instead to impose on a state their preferred abstraction--their vision of what is sacred?

Ralph E. Luker - 1/17/2006

I can't see that the right to die is any less an abstraction, Oscar, than the right to live.

Christopher Newman - 1/17/2006

Fair enough, Oscar, and thanks for a thoughtful response.

What do you say to the notion, though, that at least in Thomas's case, his decision here was influenced by the majority decision in Raich? I suppose one could argue that the Raich precedent provided cover for a decision that Thomas very much wanted to make anyway ...

Oscar Chamberlain - 1/17/2006


As usually defined, no I am not a Federalist. I think that the 14th amendment, many of the 20th century amendments, plus the perhaps unintended consequences of the commerce clause in a world in which commerce is ubiquitous have transformed fundamental law in the direction of the national government or in the direction of the individual, with the state losing sovereign power at either end.

Having said that, I think that states have great power in those areas where the national government has not extended its powers. I also think the states do retain considerable soveriegn authority in extending rights to individuals vis-a-vis state government. I also think that it is wise to allow states considerable power in many areas where national law could dominate.

My comment about the Tenth Amendment was meant to point out--as Ralph noted--that Scalia and Thomas seemed quite willing to abandon a stated philosophy in pursuit of a moral imperative. Whether that is right or wrong constitutionally or morally is another, far longer, discussion.

Christopher Newman - 1/17/2006

I'm not sure which of Scalia's decisions upholds the constitutionality of the execution of innocent people. Could you direct me to it?

Christopher Newman - 1/17/2006

I'm curious, Oscar. Are you a federalist?

Barry DeCicco - 1/17/2006

This is Scalia, who has no problem with innocent people being executed, and Thomas, who has no problem with the federal government indefintely detaining American citizens without trial. Sacredness of life hasn't restrained these men, except where they wish it.

Oscar Chamberlain - 1/17/2006

"What is consistent about them is that sacredness of life trumps federalism."

True Ralph, but if so, they are taking it upon themselves to impose their view of the sacredness of life upon others.

Is it really less sacred to offer help to a dying person who chooses to not die in agony?

Christopher Newman - 1/17/2006

I've only had a cursory glance at the dissents, but doesn't Thomas specifically mention the Raich case in his dissent as "water over the dam"? He seems to be arguing that, while he strongly disagreed with the majority in Raich, he was bound by the logic of that precedent to rule as he did in this case.

Couldn't you argue that it's O'Connor, and not Thomas, who is being inconsistent here?

Ralph E. Luker - 1/17/2006

What is consistent about them is that sacredness of life trumps federalism.

Jonathan Dresner - 1/17/2006

That was my father's first response: how can you justify making one a state's rights issue, but not the other?

Robert KC Johnson - 1/17/2006

If Rehnquist had one claim to fame in terms of judicial doctrine, it was federalism, beginning with Lopez. That concept took a big hit with Bush v. Gore, but this decision shows that none of the Justices really believe in federalism as an abstract concept that can trump their other beliefs.

Makes it kind of hard to argue that Rehnquist had any lasting effect on constitutional theory.

David T. Beito - 1/17/2006

Scalia is pretty consistent but Thomas is all over the map on this as in the case of his vote on the Medical Marijuana case.