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THURSDAY, JANUARY 19, 2006
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EDITORIAL

Oregon case shows conservative schism

A U.S. Supreme Court decision issued Tuesday suggests futility in the Senate's interrogation of Supreme Court nominee Samuel Alito and of now-Chief Justice John Roberts before him.

At issue in Tuesday's decision was whether the federal government could use its authority over the administration of controlled substances to trump an Oregon law allowing doctors to use prescription drugs to help patients commit suicide. In a 6-3 vote, the court upheld the Oregon law.

So which group of justices was more conservative? It's an unanswerable question.

By voting in favor of the assisted-suicide law, justices Anthony M. Kennedy, Sandra Day O'Connor, John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer opposed a conservative value, usually referred to as the "sanctity of life." So they must be the liberals, right?

Not so fast. At the same time the justices were trampling on the sanctity of life, they were slapping the federal government for its intrusion on Oregon's rights as a state.

The states' rights view was rejected by the other three justices, Antonin Scalia, new Chief Justice John Roberts and Clarence Thomas. These three justices are reputed to be extremely conservative. Chief Justice Roberts just survived the same inquisition Judge Alito is undergoing. That means President Bush's recent nominee who is now on the court and is the bane of liberal senators is striking a blow against states' rights.

"Conservative" today is an umbrella that tries to cover a coalition of people with disparate beliefs. It is a powerful coalition, but one that cannot survive. Conservative factions increasingly find themselves at odds. It is a rare issue where all conservative factions come out on the same side.

The dissenting justices understood the oddity of conservative justices opposing states' rights. In apologetic dissents, both Justice Thomas and Justice Scalia tried to explain their anti-states' rights dissents.

Said Justice Scalia, "The court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the federal government's business. It is easy to sympathize with that position. ... Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible."

Justice Thomas used the same justification for voting against states' rights: "I agree with limiting the applications of the (Oregon law) in a manner consistent with the principles of federalism and our constitutional structure. ... But that is now water over the dam."

The majority and dissenting opinions provide messages both to conservative and liberal senators. To the conservatives, it is a reminder that the label "conservative" on a judge's sleeve sometimes has little relationship to the end result in a particular case. To liberal senators, the message is to relax. Wise judges more often than not make wise decisions, regardless of the label we apply to them.

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