Did Chief Justice Roberts Mislead Senator Wyden?

Prior to his confirmation hearings, then-Judge John Roberts had a conversation with our Senator Ron Wyden.

While they didn't discuss the Death With Dignity law directly, he seemed to indicate that he would look favorably upon it. Of course, earlier today Roberts voted with Justices Scalia and Thomas in a dissent against upholding it.

A look back to August 10, 2005:

Supreme Court nominee John Roberts declared that, in cases dealing with end-of-life care, he would "start with the supposition that one has the right to be left alone," Sen. Ron Wyden, D-Ore., said after the two met for an hour Tuesday. ...

Roberts told Wyden that he would look closely at the legislative history of federal laws and would be careful not to strip states of powers they traditionally have held -- such as regulating the practice of medicine, Wyden said.

"You don't get the impression from how he answered that he'd let somebody stretch a sweeping statute like the Controlled Substances Act," Wyden said. ...

Roberts said the basic genius of the federal system is that it affords states the ability to approach problems in a way that is best suited to their different needs; imposing uniformity across the nation would stifle the intent of the founding fathers, Wyden said.


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    Not clear if he misled Wyden (based on an admittedly brief reading of the dissent, printed here .

    I think the issue is one of federalism, and here Scalia (with Roberts and Thomas concurring, although Thomas also wrote his own dissent) argues for federal supremacy w.r.t. public health and controlled substances.

    The case seems to turn on three words used in the original legislation: "illicit", "legitimate" and "prescription."

    The law empowers the Federal government to interpret what constitutes "legitimate medical purposes" (according to Scalia). The majority argues that when a Doctor issues a "prescription", this perforce constitutes a "legitimate" medical purpose. Scalia argues that the Attorney General also hold interpretive power regarding the "legitimacy" of a "prescription". (See esp. section I.C. of the dissent; section II tries to establish that the Federal government has supremacy over licensing physicians; section III tries to establish Federal supremacy w.r.t. public health issues).

    Thomas appears to make a rather narrow federalism claim, relying on previous interpretations of Congress's ability to regulate interstate transport of marijuana, thus arguing that the Federal government surely has the authority to regulate controlled substances.

    It's disappointing at first blush to see Roberts endorse Scalia's contradictory view of federalism; states are supreme when issues of employment rights are considered (for instance), yet the Federal government is supreme on issues of drug control and law and order. Which is it?

  • Jonathan (unverified)

    Of course, the obvious difficulty with any Senator relying on such representations (if Roberts' statements could be so construed) is that with a lifetime appointment for federal judges, a Senator can take little comfort in promises. Think Alito and Vanguard (although I believe Senator Kennedy may have overplayed that one a little in the hearings).

    For me, the more interesting issue is how liberal/conservative viewpoints can be so blantantly reversed when the issue suits the players. E.g. when states trample civil rights, federal law trumps, and liberals are glad, but when Death With Dignity is the issue, then liberals are looking for federal law to stay out of the picture. Yes, this could be construed as over-reading/enforcing the anti-drug laws, but it still raises (for me) some interesting questions.

  • Bill Holmer (unverified)

    I happen to agree with Scalia's supposed originalist philosophy. I just wish that he did.

    Scalia seems to only support federalism when it suits his politics. He opposes federalism when it comes to the Death with Dignity Act or Bush v. Gore in Florida.

    But before we cheer too loudly, if states have the right to control the practice of medicine when it comes to prescribing pharmaceuticals, why don't the states have the right to control the practice of medicine when it comes to abortion?

  • Thersites (unverified)

    And yet, as of last Friday, Wyden hadn't made up his mind how to vote on the Alito nomination, let alone to support a filibuster. Hopefully this decision will wake him up!

  • Rorovitz (unverified)

    This is really similar to the question of WHAT THE HELL IS PETER BRAGDON THINKING? Did Ted mislead us when he said he was a Democrat?

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    That's exactly my thinking, too, on the federalism argument. It seems like the dissenting three have rigged an argument to support a pre-existing view, nevermind that it isn't consistent with originalist philosophy.

    So now we have a second example of a key ruling that seems to have everything to do with federalism (I'm thinking of Bush v. Gore as the first), and the conservative cohort (or a fraction of it) has found it expedient to ignore that supposedly bedrock value of state autonomy.

    I don't actually know where one should strike the balance there, but it seems like the least we could ask for is consistency.

  • Becky (unverified)

    In my experience, trustworthy people tend to be more willing to trust others. Hopefully, Wyden realizes that he's among wolves who are playing for keeps and that he can't afford to trust them. And I have a strong suspicion that Alito is a lot nastier and craftier wolf than Roberts.

  • Mathwiz (unverified)

    But before we cheer too loudly, if states have the right to control the practice of medicine when it comes to prescribing pharmaceuticals, why don't the states have the right to control the practice of medicine when it comes to abortion?

    You're confusing two questions. The former case is a question primarily of statutory interpretation and secondarily of federalism: does the Federal CSA trump Oregon's death-with-dignity law or not, and if it does, does the Constitution allow this? The latter is a question of individual rights. There would only be an inconsistency if Roe were based on a Federal statute, but it's not; it's based on Constitutional interpretation instead.

    It's disappointing at first blush to see Roberts endorse Scalia's contradictory view of federalism; states are supreme when issues of employment rights are considered (for instance), yet the Federal government is supreme on issues of drug control and law and order. Which is it?

    For me, the more interesting issue is how liberal/conservative viewpoints can be so blantantly reversed when the issue suits the players. E.g. when states trample civil rights, federal law trumps, and liberals are glad, but when Death With Dignity is the issue, then liberals are looking for federal law to stay out of the picture.

    Both sides of the political divide are somewhat guilty of this. I think the conflict is more blatant with conservatives - who use the Tenth Amendment to overturn Federal laws they dislike (e.g., ADA), while ignoring the issue with Federal laws they like (e.g., CSA) - because they so loudly proclaim their support for "state's rights." Liberals, OTOH, generally don't make such a fuss over Federal vs. state rights: we focus on individual rights, irrespective of whether the states or the Feds are more protective of them.

  • Jonathan (unverified)

    I think this case is a long way from having implications on the abortion issue. Roe v. Wade is about preserving individual constitutional rights from intrusion by states, while Death With Dignity is about whether Congress actually precluded states from making decisions about what is a legitimate medical practice. It's my senses that everyone agrees that Congress could specifically preclude Death With Dignity; the Supreme Court ruling today only says that Congress didn't do that, yet (and, I think Senator Wyden has said that he would stand strongly to preclude any such action).

  • Robin Ozretich (unverified)

    If you're listening, Senator Wyden...

    Now you know how much you can trust one of Bush's supreme court nominees. YOU CANNOT TRUST Judge Alito when he attempts to downplay the threat he poses to a wide array of individual rights. YOU CANNOT TRUST ALITO to uphold our constitutionally-mandated separation of powers and system of checks and balances. When Alito tells you he won't crown G.W. Bush king, don't believe him.

    You've learned your lesson - you must not only support, BUT LEAD a filibuster of Judge Alito. Our Constitution is counting on you.

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    Scalia and Roberts have clearly shown a bias in their dissent that has nothing to do with the law or the constitution. It is their own interpretation of what "a legitimate medical purpose" is. For those of us who support death with dignity, easing pain in a dying patient to the point of speeding death is a legitimate medical purpose. To Scalia and Roberts it is not. They have made a moral, not a legal decision. The fact that they feel an attorney general, not the medical community should decide what a legitimate medical purpose is says it all.

    To me it is not a states' rights issue so much as a question of where does ones own morality or values determine how the law is interpreted. The defenders of Alito and Roberts claimed that this is not a basis for deciding whether they should be confirmed. This case clearly shows that it is a deciding factor in the court's decisions and should be a deciding factor in their confirmation.

  • Sid (unverified)

    O'Conner will be missed. I don't understand why she stepped down... or why she ruled in favor of Bush in B v. G.

  • Tenskwatawa (unverified)

    The central cause in my comment is portraying accurate truth, which is: Roberts told Wyden, W. told Jim Barnett, B. wrote it to Oreg.Editor, E. wrote it to us readers. This is so important -- for newspaper readers to see each one of these steps that has brought them the news in their mind's eye as they are reading that news. Seeing these steps is 'sourcing.' Importantly, readers need to source the material they are reading as they read it. The degree to which a reader does, and can, do 'sourcing' while reading, determines the reader's reading diet.

    Often a reverse description of the chain is clearer for a reader to get in mind, since it starts there and goes out. In this case, 'the reader of the morning paper' is told by the Editor, that Barnett told E., that Wyden told B., that Roberts told W., that: "fill_in_the_blank_Robert's_thoughts."

    The reader of this comment is told that I have seen these newspaper production steps as an eye-witness. Nobody told me.

    (A rest in reading now, to prepare for a segue after these parentheses close. To humanize me with a personal note, meaning to aid the reader's judgment in how much to believe or take fact in reading my writing: as to my parts in producing mass media, for over ten years I operated video cameras sometimes courtside at Blazer games, and some individual tv images you have seen I had first chosen and framed in my viewfinder, (same as 'edited'), for you to see. Maybe edited to include a famous person's face in the frame, a spiff to them I could collect a private pay-back for later, having nothing to do with the viewer's view of the basketball atheletes' competitions and having everything to do with the viewer's view of the famous person as TV-famous in the viewer's frame of mind -- 'famous' and a more important person, a more valuable person, a more worthy person, a person of a bigger life, than the viewer. Shmuck. Loser. Gullible. Vegetative-minded couch-potato. Other times, perhaps, I edited the field of view my camera showed you to exclude a famous person's face from the frame, as they are ugly drunk and kissing a toad, having everything to do with maintaining the viewer's respect for the 'famous' by omitting contradictory infamy, and having to do with my extortion from the famous person later. They give me more 'access' to them. That is a kind of livelihood, food in my mouth. Think: Kato Calin. How much of the basketball game you see, or how much food it puts in your mouth, I don't have purpose to care. Nor whose throat gets slit -- you know, as long as my premeditated hero-images are not disabused.)

    Segue to Becky's phrasing, "trustworthy people tend to be more willing to trust others." We are all trustworthy individuals. And we trust others to have the same degree of trustworthiness we ourself have. But of course they don't, any more than they have the same degree of skin temperature that we have ... it's about how our genes build each of our bodies individually unique, and our individual degree of trustworthiness is endowed in us in our genetic make-up.

    Comes this recent article on how the human brain refers others' brains to its own sense, and infers its own braininess from others' brains.

    Cells That Read Minds, (NY Times Science), By SANDRA BLAKESLEE, Published: January 10, 2006.

    Humans, it turns out, have mirror neurons that are far smarter, more flexible and more highly evolved than any of those found in monkeys, a fact that scientists say reflects the evolution of humans' sophisticated social abilities.

    The human brain has multiple mirror neuron systems that specialize in carrying out and understanding not just the actions of others but their intentions, the social meaning of their behavior and their emotions.

    This 'pass on' trustworthiness idea is related to the familiar sense of gossip being distorted in the child's game of Telephone, which passes a whispered message along a chain of people and shows: message in, mistaken out (mimo). Knowing this helps all of us now that we all are editors, we all are 'camera-frame' workers, writing web media among ourselves, sole sources for each other.

    Another recent article discusses differences a writer sees in the impression he had of 1925 that had come passed along over the years, and the impression he had from reading a 1925 newspaper, as a sole source. Through a looking glass, David Shariatmadari, 20 - 12 - 2005 (Dec.20,'05) An eighty-year-old newspaper and a superstitious moment give David Shariatmadari fresh perspective on his anxious modern condition. Original here. Commented on here.

    My comment ranges far -- not off topic -- into communication and comprehension fundamentals, as it seems the only common ground where the variety of Blue Oregon readers can begin in agreement. Establishing that basis on which to build to the point: Roberts by omission deceived Wyden on purpose, (so the Chief Justice of our Supreme Court is a knowing liar), Wyden by selectivity deceived Barnett on purpose, (so our Senator is afraid of us, readers, and an unprincipled loser), the Barnett-to-Editor tandem, by working the frame, deceived readers on purpose, (selling readers 'news of the game,' and to extort Wyden, for their own profits in both), and the reading trolls read it to anyone who listens to them without reading it themself.

    Hell, yes, Chief Justice Roberts lied to Senator Wyden. Who knew it was a lie AND passed it along specifically to put his own Wyden-lies in the minds of Barnett's readers. And our mirror neuron systems know and understand all the lying, except in our heroes.

    When your neck is on the line, as every American's, every reader's neck here is, then see reality. Lose the hero worship.

  • Tenskwatawa (unverified)

    I guess it went without saying that none of it has anything to do with Justice or constitutional law or issues of legality. And medically assisted suicide, as the cat's-paw for the politicking, is irrelevant.

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    "O'Conner will be missed" ... but only in comparison to the right-wing zealot replacing her. under normal circumstances, she was not a great justice. she leaned too far to the right for my progressive beliefs to stomach, and her vote in Gore v Bush simply showed her true colors. Kennedy is little better; in fact, if he were a true moderate, we could be less worried about Scalito. but Kennedy tends to be gutless and vote whatever way Darth Antonin tells him. this case was a rare exception. Alito is bad news, but the real problem is Kennedy.

  • BlueNote (unverified)

    On the original poster's point, I guess I assumed that everyone knows that a judicial appointee does not guaranty a particular future outcome by answering questions during the pre-appointment screening process. The alternative - having judges give advance notice on how they will vote on future cases - is frightening to me and I would hope to everyone interested in justice.

    Off point and in regard to the decision itself, I hate to admit this, but the Clarence Thomas dissent in today's Oregon case was very interesting and to me somewhat persuasive. Thomas points out that a few months ago this same court ruled that the CSA trumps state law on the issue of medical marijuana. So, asks Thomas, if that is true, how can the court now say that the CSA does not trump state law when it comes to lethal prescriptions of barbituates? The two decisions seem inconsistent.

    Having said that, it is always nice to see the Bush administration lose.

  • elliottg (unverified)

    Marijuana is not prescribable under the existing CSA. Were it available as something other than a Class 1 drug then Thomas may have a point, but it isn't so it point is moot (and unpersuasive).

  • space (unverified)

    The alternative - having judges give advance notice on how they will vote on future cases - is frightening to me and I would hope to everyone interested in justice.

    Nobody is asking for advance notice on specific cases. And the reason is very simple: cases are fact-specific. Different facts can always alter an outcome.

    What I do expect is that justices explain their understanding of the LAW. And I expect that their interpretation of Constitutional Law will not change from month to month. Will explaining the LAW sometimes allow people to predict how justices will rule in subsequent cases? Absolutely, but there is nothing wrong with that. Indeed, clear laws reduce litigation.

    A judicial opinion is not a movie. The parties involved are not entitled to be held in suspense until the final moments of the third act. If Roberts or Alito had been candid during the committee hearings, it would not have "spoiled the ending" for future litigants. If a justice's prior writings, testimony, or decisions telegraph how the justice is likely to rule in subsequent cases, that is the way the system works.

  • wg (unverified)

    the Oregonian has a surprisingly well-thought-out editorial on this, not too parochial, not too overbearing, just thoughtful. Not bad for them.

  • Jim Pharo (unverified)

    Can anyone really claim surprise from nominees who have been coached to "just get confirmed."

    They come to the process with contempt for it. They do not view it as legitimate in their hearts. So they are perfectly willing to say anything to get confirmed. The trick is to not only seem genuine, but be careful to avoid ruffling feathers on the left or the right.

    We all know, already, how Roberts and Alito will vote on a women's right to choose. We can kid ourselves and try to believe their reassuring words about open minds and settled law.

    But we already know what they'll do. It's why they were appointed.

    This is exactly why so many of us fought so hard to get Sen. Kerry elected last year.

  • mrfearless47 (unverified)

    "Marijuana is not prescribable under the existing CSA. Were it available as something other than a Class 1 drug then Thomas may have a point, but it isn't so it point is moot (and unpersuasive)."

    Exactly. The assisted suicide law involves drugs that are schedule 2 or schedule 3, and are fully and legally prescribable under the CSA by any doctor licensed to practice medicine AND licensed by the DEA to prescribe scheduled drugs. Marijuana is also covered under the CSA as a schedule 1 drug (just like heroin), which makes it ILLEGAL to prescribe this for ANY medical purpose except medical research under very strict conditions. So Thomas' point is quite irrelevant to the matter under consideration. So long as the CSA lists marijuana as a Schedule 1 drug, no state laws are going to be able to trump it. It will take the DEA and the AG's office, working in concert with the medical community to carve out some exception for medical marijuana.

    The Court's ruling in Gonzales v Oregon is entirely consistent with current law. The Court's ruling in Raich is also entirely consistent with current law. I may be disappointed in the Raich ruling but I could have hardly expected any other result.

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    Kos just put this post into the midday open thread (I think Americablog had it yesterday), so enjoy the traffic! And I hope the national attention prods some kind of response from Wyden's office. I'm still trying to get a substantive comment.

  • Mitch Davidson (unverified)

    Conservatives are against the campaign finance law. Dems on the court disregard the first amendment here.

    Dems on the court last year wouldn't let states have control over the death penalty for minors

    On eminent domain dems vote against private property rights.

    The gore vs bush was rejected because the time had passed and gore had unconstitutionally cherry picked counties.

    Dems spit at states rights and want to take over your lives

  • me (unverified)

    That's a "lie" only if Roberts made a promise with no intent to perform. But no promise was asked for or given.

    Your post shows the perils of inferring that a nominee made an implicit promise. You should either ask them to make a promise or don't ask them to make a promise. And if you do, be ready for "I ought not, and do not, make any promises of that sort."

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    yea Mitch, and we see how much reverence for states rights the Bush administration has: Oregon votes twice for the DWDA and Ashcroft tries to overturn that. they foist NCLB on the states -- it was not optional -- but no money to make it work. and they take our STATE militias to use on national projects, like the creation of international terrorists in Iraq. o yea, the Dems are sooooooooo bad on states rights.

  • JR (unverified)

    Scalia "surely" knows what a "legitimate medical purpose" is, regardless of what the voters and physicians of Oregon think. How does he know so surely? His church tells him so. Not coincidentally, it's the church of Thomas and Roberts as well. The knowledge that Alito is about to join them is encouraging them.

    We are going to see a lot of cases like this. When the right-wing Catholics find their religious beliefs in conflict with federalism or any other constitutional principle, they are going to go with their religious beliefs.

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    Um, "me" - you're the only here who has used the word "lie" (except Tenskwatawa - who forgot his meds again today.)

    I believe the word in the post is "mislead" and it's not about inferring a promise - but rather that his broader logic that he shared wasn't implied in the dissent for which he voted.

    People should be left alone - nope. States should be allowed to experiment with policy - nope.

    As we've discovered with Scalia, the doctrine of states' rights only seems to apply when the states are being 'conservative'. When they get 'liberal' the feds rule the day.

  • j.biddy (unverified)

    I'm just going to say "I told you so" to all the people on BlueOregon that were singing the "who knows, once he gets on the court he might surprise us with this decisions." There were entirely too many people on here saying "give him a chance."

    You're all eating your words now.

  • Tenskwatawa (unverified)

    For the purposes of parsing aimed information, such as in this instance from a public spokesperson to the public, (Wyden talking to reporter Barnett), the word 'lie' describes a media statement which misrepresents the truth the speaker knows. Misrepresenting by leaving it out or saying it wrong, on purpose, and some amount of willful intent is always involved when the truth known in one's head is circumvented in one's speech.

    (This circumvention showed up on brain scan images, according to news reports of published research findings. The research took brain scans of subjects who had been instructed to lie, (in obvious questions like, What's your birthday, or, What's the state capital?) For various other questions they were instructed to tell the truth. The brain scans show: 1. The brain hears the question and 'lights up' in its audio signal processing; 2. a 'light' signal appears in the images tracing along the neuron from the audio center to the cognition area, and then on to the memory where the answer is stored for the question; 3. then the 'light' signal fires the neuron path from the cognition to the speech processing center, in telling the truth. BUT, in telling a lie, the 'light' path coming out of cognitive memory with the answer, takes an extra, visibly shown, detour path to other memory storage where the lie information is picked up, before going on the path to the speech center. We all know the subjective feeling, in our own heads, when we take an extra blink to pick Which lie after we decide Where we want one to 'cover' the truth. And we see in others when they are lying the same extra blink to a delayed answer as when we do it. So, from the research we get no new 'understanding' of the lie process, it just is neat to see it alive in pictures of the brain doing it.)

    My 'lie' word is for when truth in memory is waylaid on its way to the speech facility, waylaid either by stopping it or replacing words.

    Roberts lied to Wyden since Roberts was convinced he knew his vote already, and intentionally avoided telling Wyden that.

    It doesn't take brain surgery to be able to say the Chief Justice of our Supreme Court is a liar and lied to our senator. It takes righteous nonacceptance and disdain for such immorality in that official. Same as Wyden misleading the truth before speaking -- ill repute; same as Barnett-and-Editor sidetracking their known truth into mute as a cover-up favor for Wyden -- unacceptable, non-subscribable.

    Hey, if there's a market for daily lies, send me your money -- half-price sale: 25 cents -- every day and let me supply you.instead of The Oregonian.

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