August 10, 2005

Roberts Would Uphold the Assisted Suicide Law?

That's what Sen. Ron Wyden seems to think.

Supreme Court nominee John Roberts declared that, in cases dealing with end-of-life care, he would "start with the supposition that one has the right to be left alone," Sen. Ron Wyden, D-Ore., said after the two met for an hour Tuesday.

If he holds to that, I think it's a definite point in his favor.

This article notes something other important points too. It appears that Roberts is of the school that legislative history matters. Given his history, that's not too surprising. But it does suggest he could have notable differences with strict textualists. It also appears that he's a fan of the federal system as a political structure that allows for testing and innovation.

Roberts said the basic genius of the federal system is that it affords states the ability to approach problems in a way that is best suited to their different needs; imposing uniformity across the nation would stifle the intent of the founding fathers, Wyden said.
Posted by armand at August 10, 2005 11:19 AM | TrackBack | Posted to Law and the Courts


i'm afraid, even if wyden correctly represented roberts' position on this matter, that simply doesn't suggest roberts would have reached a different result in cruzan, in which the Court found no fundamental right to physician-assisted suicide. cruzan not only did no violence to one's right to be left alone, but in fact it accepted that as a jumping-off point.

one's right to be left alone, relevant in this context in the supreme court's unfaltering acknowledgment of a patient's right himself or by proxy to decline life-sustaining medical treatment and other extraordinary and invasive life-extending measures (i.e., tube feeding), was neither implicated in nor abrogated by cruzan. on this, if memory serves, the Court spoke unanimously. it's historic, traditional, black-letter law beyond cavil.

in cruzan, furthermore, the Court did not say states could not provide for physician-assisted suicide through state-specific 'death with dignity' laws. all the Court said in cruzan was that there is no fundamental right entitled to strict scrutiny to seek the assistance of another party to aid in one's death such that any given state can't outlaw same. the Court said it's a state-specific matter, subject to minimal (rational basis) scrutiny, because the right implicated, to the extent they even acknowledged that word as applicable, is neither fundamental nor rooted in the histories and traditions of our (anglo-american) culture. people tend to forget that in cruzan the Court effectively punted.

roberts' starting off point is every justice's starting off point on this and related matters. nothing wyden ascribed to him speaks even remotely to the issue at stake in cruzan, or the matter of physician-assisted suicide it specifically addressed.

it's possible, on the other hand, that the attributed quote suggests a reasonably progressive view of the "penumbral" right to privacy that has animated the Court's holding in many of the substantive due process cases, including griswold (contraception) and roe v. wade. and that's something i'd be happy to hear, as i imagine the entire coup would be. but that's a different matter entirely.

Posted by: joshua at August 10, 2005 01:46 PM | PERMALINK

Gee - Here I was hoping that this was some evidence that Roberts wouldn't be a Rehnquist clone after all, and you have to go and rain on my parade. :( Thanks for the information though.

Posted by: Armand at August 10, 2005 02:07 PM | PERMALINK

focus on the last part -- the right to be left alone and the right to privacy are fairly closely related for many legal thinkers. if that's what he meant, whatever else we'll be saying about him in ten years, rehnquist-like is not one of them (and not just because it's an awkward construction).

Posted by: joshua at August 10, 2005 02:25 PM | PERMALINK

I don't trust Bush. Having said that, I must express deep concern that his nominee John Roberts will not consider the spirit of the constitution. Violations of our constitution don't have to be blatently proscribed in the document. The right to privacy is an excellent example. The Ninth Amendment from my perspective guarantees privacy. It states "individual rights that are not enumerated in the constitution are secure" - I can think of three justices who are blind to this and it is troubling to say the least.

Posted by: John at August 10, 2005 03:40 PM | PERMALINK

not that i necessarily disagree, john, but one should be wary of too broad a reading of things like the 9th amendment. after all, one might argue that one such unenumerated right is the right to government subsidized peanut-butter sandwiches, which needless to say would be an expensive, not to mention sticky, problem.

all right. back in my cave.

Posted by: joshua at August 10, 2005 04:17 PM | PERMALINK


Agreed.:) However, arguments about "too broad a reading of certain amendments" usually stem from bias against a certain group/issue. For example, the Supreme Court actually ruled at one time that "person" really meant "business" which enabled them to continue the disenfranchisement of blacks.

Posted by: John at August 11, 2005 11:28 AM | PERMALINK

and also gave corporations tremendous rights, vis-a-vis the first amendment. that arguments cabining the scope of constitutional rights to reach nefarious ends are easy to come by, that's not an argument for uniform breadth. if anything, it's more support for the idea that we ought to be careful how broadly we construe things. given my extensive contact, and mounting experience, with the appellate judiciary, i find myself constantly moving further and further toward judicial restraint; it seems the only reasonably administrable attitude toward constitutions generally.

Posted by: joshua at August 11, 2005 11:44 AM | PERMALINK

From my persepctive Judicial restraint, these days, seems to mean protecting corporations and providing "welfare for the rich" while ignoring social injustice (police powers that are too broad) and upholding centuries of bigotry. BTW, I'm not trying to imply that Judicial Restraint is never a desirable thing. The recent land-grab ruling had me quite upset!

Posted by: John at August 11, 2005 12:08 PM | PERMALINK

see, to me judicial restraint describes virtually nothing the rehnquist court has done in the past decade. but this is a longer discussion than a comment thread reasonably permits. you aren't by any chance a local i have some chance of meeting someday, are you?

Posted by: joshua at August 11, 2005 02:20 PM | PERMALINK

No, I'm an average Joe who learned something in high school and community college - still pursuing that Bachelors. :)

Posted by: John at August 11, 2005 03:14 PM | PERMALINK

too bad.

btw, i wasn't asking whether you were an academic, but rather whether you were proximal -- i'm in pittsburgh, but i visit the coup and others in from time to time.

it's much more fun to discuss judicial restraint and other intractable problems over beer.

Posted by: joshua at August 11, 2005 03:59 PM | PERMALINK

I'm not anywhere near Pittsburgh - though I'd like to be. :) Also, I don't drink beer. I do have friends who drink beer!

Posted by: John at August 11, 2005 06:14 PM | PERMALINK
Post a comment

Remember personal info?