see "Roberts Court Hears Case on Suicide Law
Chief Justice Seems Skeptical of State" (Washington Post, 10/5/05)
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/05/AR2005100500122.html

and Supreme Court Excerpts (Washington Post, 10/5/05)
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/05/AR2005100501835.html

John Roberts began his career as Chief Justice of the United States with a difficult case regarding the authority of the Attorney General of the United States to terminate prescription privileges of doctors who prescribe drugs a patient when those drugs are to be used for the patient's suicide.

Despite some of the commentary out there which discusses this case in parallel with the Raich case in which the Court recently ruled against medical marijuana use in California, the cases are very different.

In this case, Gonzales v. Oregon, the question is not about the Federal government using interstate commerce laws to regulate the use of a drug. It is instead about whether the Attorney General has authority to regulate doctors, an area which has traditionally been left up to the states.

The case began with John Ashcroft who filed to block Oregon's assisted suicide law. Interestingly, Janet Reno as Attorney General under Clinton, said that the Controlled Substances Act did not give her the authority which Ashcroft then asserted several years later.

It's a subtle and interesting discussion, but for me the proper outcome is clearly that the state of Oregon should prevail. My prediction is that Sandra Day O'Connor will be gone from the Court before the decision and that the decision will be a 4-4 tie after which the Court will order the case to be reheard. I think there is some hope that Oregon will win, and I hope they do, but I wouldn't bet on it given the results in Kelo and Raich, both of which show the Court with excessive and dangerous deference to any power the government wants to assert.

Justice Roberts took center stage, literally and figuratively today, with intense questioning of Oregon's attorney. For those who wondered whether John Roberts was the same sort of staunch federalist that William Rehnquist was, the implication of todays questioning is that the answer is "no". I hope that Roberts was, and is, not predictible in that way. In other words, I hope he doesn't easily give away his position by the nature of his questions and that he might be playing the devil's advocate occasionally.

But today his tone was troubling for those who believe that the rights of states to regulate their own affairs must trump the right of the Federal government to assert authority where such authority is unclear both in source and in necessity.

Given Judge Scalia's atypical error in the Raich case, by which he demonstrated a less than full commitment to federalism, I would expect him to vote against Oregon.