meet your new friends, Sam

The Supremes handed down a ruling Tuesday on Oregon’s “Death With Dignity” law. No matter what your feelings on physician-assisted suicide, the six to three decision bodes ill for the future—not because of the six in the majority, but because of the three in dissent.

The six in the majority, speaking through Justice Kennedy’s opinion, sided with a literal interpretation of the Controlled Substances Act, ruling that then Attorney General Ashcroft overstepped his authority when he tried to use the 1970 act to cancel-out Oregon’s twice-ratified law. The opinion did not say that Congress couldn’t pass a new law specifically banning physician-assisted suicide.

The dissenting justices chose an activist path, inventing a new use for the Controlled Substances Act that was not even hinted at in the bill or its legislative history. They also chose to side against the decisions of two lower appeals courts.

Two of the dissenting justices are no surprise—they are the high court’s most activist judges, Scalia and Thomas. Joining them, in what looks all too much like a harbinger of things to come, was that paragon of precedent, that stud of stare decisis, that literal legal eagle, Chief Justice John Roberts. If this is the result after Roberts’s proclamations of judicial restraint at his confirmation hearing, one can’t help but ask whom Sam Alito will side with if he joins the court. Given Alito’s decidedly lower level of commitment to legislative intent and judicial precedent, it looks like Antonin, Clarence, and John will have a new playmate.

[I will likely mention this again, but now would be a good time to call your Senators. Tell them that you don’t want to see Sam Alito on the Supreme Court, and that you expect your elected proxies in this fight to do everything in their power to stop his confirmation—that means a “no” vote, and a vote to sustain a filibuster, if necessary. You can phone the US Capitol Switchboard at (202) 224-3121—a switchboard operator will connect you directly with the Senate office you request. You can also sign this petition (but please try to make the calls, too).]