Gonzalez v. Oregon (2006)

The Court issued its 6-3 decision and opinions in the Oregon Death With Dignity case yesterday, affirming the Ninth Circuit's decision that the Oregon doctor-assisted suicide policy can't be overridden by the attorney general issuing an "interpretive rule" that prescribing drugs for that purpose is not a "legitimate medical purpose" under the Controlled Substances Act of 1970 (CSA). In effect, the Court (in an opinion by Justice Kennedy, joined by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer) issued a strong "states' rights" opinion, but the opinions themselves focus on the attorney general's power to issue the regulation and the deference due to regulations promulgated by the executive branch. Justices Scalia and Thomas both wrote dissents, and the Chief and Thomas joined the Scalia dissent, which is pretty persuasive on the issue of deference. (This was Chief Justice Roberts's first public dissenting vote. He still hasn't published a dissenting opinion.)

The interesting point in Gonzalez v. Oregon is that, less than a year ago, the Court held that the CSA precluded California's medicinal marijuana program in the Raich case. Raich was also 6-3. In that case, Justice Stevens wrote for himself and four colleagues--Justices Kennedy, Souter, Ginsburg, and Breyer--and Justice Scalia wrote a special concurrence; the Chief Justice (Rehnquist) and Justices O'Connor and Thomas dissented.

That means that the only two Justices to hear both cases taking the "same" position with respect to both state medicinal marijuana policies and state doctor-assisted suicide policies were soon-to-depart Justice O'Connor (voting to uphold both state policies) and Justice Scalia (voting against both state policies). The other five members of the Gonzalez v. Oregon majority (other than Justice O'Connor) all flipped to the "states' rights" side. And Justice Thomas flipped to the federal power side.

I don't know what to make of that, but it's worth mentioning.