Thursday, January 19, 2006

Saletan on Scalia

William Saletan has this interesting analysis of Justice Scalia's blatant hypocrisy on the subjects of abortion and assisted suicide. Here's an excerpt:

Principle 1 is to beware value judgments disguised as fact or reason. In Casey, Scalia derided his colleagues for reaffirming Roe v. Wade. He accused them of invoking “what the Court calls 'reasoned judgment' ... which turns out to be nothing but philosophical predilection and moral intuition.” In Stenberg, he faulted the other justices for applying a standard that “can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment.”

That was Scalia's principle on abortion. On assisted suicide, however, the principle gets in his way. The latest case, Gonzales v. Oregon, involves a law, directly approved twice by Oregon voters, that lets doctors prescribe drugs so terminally ill people can kill themselves. Years ago, then-Sen. John Ashcroft of Missouri asked then-Attorney General Janet Reno to block the law. She refused, citing states' rights. Ashcroft asked his Senate colleagues to pass legislation to block the law, but they refused, too. So, when President Bush took office, Ashcroft got Reno's job, ordered up an in-house legal memo that said assisted suicide wasn't a “legitimate medical purpose,” and declared that the Controlled Substances Act of 1970 gave him authority to strip the license of any doctor who prescribed lethal drugs under the Oregon law.

Six of Scalia's colleagues conclude that what counts as a “legitimate medical purpose” is a value judgment and that on such questions, a 30-year-old law aimed at hippie stoners doesn't authorize the U.S. attorney general of 2001 to superimpose his moral intuition on the assisted-suicide-policy decision of Oregon voters. Scalia, however, says Ashcroft's definition of “legitimate medical purpose” isn't a value judgment; it's pure reason. He repeatedly calls it the “most natural” and “most reasonable” interpretation of that phrase.

Scalia chides the court's majority for confusing “the normative inquiry of what the boundaries of medicine should be—which it is laudably hesitant to undertake—with the objective inquiry of what the accepted definition of 'medicine' is.” Those silly justices—they applied Scalia's principle when it didn't lead to the result he wanted! To justify Ashcroft's interpretation, you have to spin it as objective, not subjective. Accordingly, Scalia opines, “The use of the word 'legitimate' connotes an objective standard of 'medicine,' and our presumption that the CSA creates a uniform federal law regulating the dispensation of controlled substances ... means that this objective standard must be a federal one.”

Saletan goes on to describe two other examples of Scalia's hypocrisy.

In a lot of circles Sclaia gets presented as the model of a principled justice. He preaches “originalism.” He's not one of those activist judges who just find in the constitution whatever it is they want to do anyway. Some of his more sycophantic admirers are fond of telling stories about how he tracks down dictionaries from two hundred years ago to determine what particular words meant at the time they were written.

In reality he is as much an activist as the people he criticizes. He espouses originalism, one suspects, because most of the time that is the language that provides the best cover for what he thinks the Constitution ought to say. But when abstract legal principles get in the way of his preferred view of the world, as in the Oregon assisted suicide case or in “Bush v. Gore”, the principles go out the window in a hurry.


At 3:15 PM, Anonymous Anonymous said...

Hyporisy aside, Scalia's reasoning in the assisted suicide case just doesn't make sense. Why does he think the Attorney General is more qualified than a doctor to say what is and is not a legitimate medical purpose? I mean, I'm not a lawyer, but the fact that a physician has written a prescription for something should create a pretty strong presumption that there is in fact a legitimate medical purpose there, shouldn't it?

Fot that matter the death with dignity law, as I understand it, doesn't define what's a legitimate medical purpose. It just shields doctors from prosecution if they determine it's appropriate to write terminally ill patients prescriptions for drugs that will end their lives.

At 8:52 PM, Blogger Joseph said...

Here's a defense of Scalia against these hypcrisy charges. I am not a lawyer, so take these opinions with a grain of salt.

Regarding the first charge of hypocrisy, Scalia's reasoning seems perfectly clear. For example, Scalia could be interpreting the first clause of the CSA ("Many of the drugs included within this title have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.") as a definition of "legitimate medical purpose". Ethics aside, assisted suicide is clearly not about maintaining health, so is therefore not a "legitimate medical purpose". So Scalia seems to be following his principles here: he sees a clear definition in the text that assisted suicide fails to meet.

The second charge of hypocrisy is a simple straw man fallacy. If I remember correctly, Scalia's view is that a judge should be bound by a fair reading of the texts relevent to a case, not by the original intent of the lawmakers who enacted those texts.

The third charge of hypocrisy is antoher straw man that is commonly used to discredit conservatives, the false argument being that conservatives always want to defer to the states as much as possible. Conservatives presumably believe that the federal government has rights assigned to it just as the states have their own rights. Whether this charge of hypocrisy applies to Scalia thus depends upon his argument for favoring a federal law over state action in this case.

Two of the three charges of hypocrisy therefore seem to be false, with the third charge requiring a more detailed legal analysis to resolve.

At 9:51 PM, Anonymous Anonymous said...

Defining "legitimate medical purpose" as simply "maintaining health" is narrow-minded. Isn't medicine aslo about easing suffering? (Why else do we waste perfectly good narcotics on terminally ill patients in the first place? There's no health to maintain there!)


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