Responding to Mike O’Hare’s complaint that justice-to-be Alito lacks any sense of … well … justice, several conservative and conservatarian blogs, including the estimable Professor Bainbridge, pointed out that a judge is supposed to judge by the law, not by his or her personal sense of right and wrong. Indeed, they said, that’s the difference between good (i.e., conservative) judging and bad, liberal judging: conservatives judges know their place in the democratic order and don’t try to impose their own views in preference to the views of the people expressed through their elected representatives.
As a legal matter, the key question was whether the Justice Department could use the its power to hand out licenses to prescribe abusable drugs to regulate the practice of medicine, as opposed to using that power only to prevent “script-doctoring” and the diversion of drugs to the illicit market. The regulations provide that physicians may prescribe drugs only for a “legitimate medical purpose.” Could that rule be used to overrule the decision of the voters of Oregon, voting in a referendum, to allow physicians in that state to help badly suffering terminally ill patients put an end to their misery?
To Scalia, the answer is clear. “If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.”
Savor that “surely,” if you will. Because Scalia finds assisted suicide morally offensive, it “surely” must be the case that relieving suffering by hastening death isn’t a legitimate part of what a physician does.
I’m glad Scalia’s opinion was a dissent, not so much because a few Oregonians will continue to have access to physician assistance in ending their lives – the job can be done without the use of controlled substances, for example by using a breathing mask hooked up to a tank of an inert gas or nitrous oxide – as for the sake of striking down what seemed to me a clearly illegitimate power grab by the Federal government on behalf of the prejudices of the “God” faction of ruling God-and-Mammon coalition that is the political base of the current ruling oligarchy. But it’s also worth noticing how empty the conservatarian promise of “neutral” judging turns out to be when push comes to shove.
All judges judge by their personal beliefs. Whose beliefs would you expect them to judge by?