Justice Thomas, dissenting : Socratic Rhythm Method

by Matt Barr

Justice Thomas, dissenting

If you can rouse the energy to work your way through the impenetrable majority opinion and principal dissent in Gonzales v. Oregon, then do treat yourself to Mr. Justice Thomas' eminently sensible, irresistably persuasive dissent.

I'm at a conference and can't keep up as well as I normally do, but I'll bet you nobody can really find themselves getting behind it. If you're a federalist revolutionary, you nervously applaud the pin-the-tail-on-the-Constitution jurisprudence of the majority, because you dig the result. If you're a culture of life conservative, you're with Mr. Justice Scalia (interestingly, and in the main encouragingly, joined by the Chief Justice, whose conservative credentials, remember, are still really in doubt until he gets some votes like this one behind him). If you're a liberal, you hear it's ok to kill the elderly, infirm and hopeless and give three cheers.

Thomas' dissent is elegant. Having penned a stirring dissent in the Raich medical marijuana case, you'd have bet he would vote in favor of the result of the majority. He is not a results-oriented Justice. I would do no justice to his opinion by quoting snippets. Suffice it to say that it is preposterous that the Court would find for Oregon using the reasoning it did when that reasoning is almost wholly different from its Raich decision, and Thomas treats it as so. "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." Indeed.

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Comments

bujeeboo posted:

We're all Libertarians today.

For starters, it depends on whether one thinks alleviating suffering during a time we all face (death as a health matter, if you will) as "doing harm". Controlling pain and thereby providing comfort are indications of many legal controlled substances. It should be up to the patient and the doctor what alleviating suffering means. And the Raich decision was wrong for the same reason, except that marijuana has not gone through the same governmental channels to approve it for market and therefore, "prescription-writing" and getting it from a pharmacy. It can be grown and trafficked illicitly all over the place. There are people in this debate who would like to make doctors and terminal and suffering cancer patients like common criminals for wanting to alleviate suffering. That's just immoral, in my mind. Asking someone to suffer nobly when there is an agreed-upon exit to that suffering is immoral. These aren't heroin addicts and traffickers, "hiding drugs in their children" for godsakes! It's grandma and grampa, mom and dad or maybe even a spouse or our grown children!!!

This is a victory for State's Rights (one of the last, I fear) and should make a Libertarian damn proud because the Federal Government is too stupid to be in the business of doctoring or getting betwixt and between the doctor-patient relationship. The AG didn't even have standing, because this is about DOCTORING and the education and expertise that goes along with it and the State's jurisdiction over doctors.

How much clearer does it have to be?

January 18, 2006 6:35 PM

MJB posted:

What I probably haven't made clear, since I wasn't online a lot in Vegas, is that this result, using the Court's reasoning, is preposterous given the Raich decision. While I thought the Raich result was more plausible under the Court's jurisprudence than most, I opposed it. I would rather have seen both Raich and this case come out against the federal government for consistent reasons. I was delighted to see Thomas' thankfully brief opinion address that issue square on.

My profound hope, by the way, that the new Chief would start to rein in these 48-page, 16-part opinions addressing yes or no questions is starting to fade.

What I'm surprised I haven't made clear by now is that I believe the federal government shouldn't be either in the business of prosecuting medicinal marijuana users nor doctors who help the terminally ill die peacefully and painlessly. You read my post about how this particular law (not, certainly, any assisted suicide law you could come up with) was alarming to me in how it might accomodate coercion and the killing of people who didn't want to be killed and decided I was Shirley Dobson. Que sera. Being concerned about people dying is so uncool in a libertarian, I know.

I've probably written a dozen posts in the last year about how I refuse to cheer the Court's results if I have no confidence that I know how it will come out the next time. Line up Raich and this case and you tell me what's going to happen in the next medicinal drug case.

January 20, 2006 8:17 AM

bujeeboo posted:

Well, you are more learned in the Arts of Law than I of course. But I don't see a conflict, because I don't see Thomas' point in drawing a relationship between the two cases.

I think it it more likely that this is going to go the Legislative route next, and let's hope that those folks remember how the public reacted to Terri Schiavo meddling.

Vegas, huh? Why do companies think everyone likes to go to Vegas for conventions? Husband goes there 4 times a year and can't decide if it's better or worse than his other lothesome and frequent destination, Orlando.

January 20, 2006 11:29 AM

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