Preview of New America

January 23,2006

While some liberals may applaud the announcement of the decision affirming the state of Oregon's Assisted Suicide Law that allows people in the terminal stages of an illness to receive drugs to end their life, it sends a message that should be deeply disturbing. The Supreme court was two votes away from a different outcome.

Justices John Roberts, Antonin Scalia and Clarence Thomas disagreed with the majority. In his dissent, Scalia wrote: "The court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the federal government's business. ... If the term 'legitimate medical purpose' has any meaning, it surely excludes being used to produce death."

The above statement is not part of American jurisprudence or found in the Constitution, but happens to be a central tenet of Roman Catholicism. This is so ingrained in the thinking of Anton Scalia, that for him it was “surely” self evident. His quote is missing the conclusion that follows inexorably, “Only God almighty decides when a person’s time on earth is over.” While written by Scalia, it was endorsed by Thomas and Roberts.

It is a travesty that during John Roberts’ nomination hearing an examination of how he would integrate his religious beliefs with his constitutional responsibilities was off limits. Religious bigotry was not an accusation any Senator was willing to face. Roberts is a man who goes to mass every week to receive the sacraments, predicated on forgiveness for any sin, including that of disobeying the ex cathedra proclamations of the vicar of Christ on matters of faith or morals. Yet no member of the Senate would ask him how he would reconcile these ecclesiastical laws with those of the United States Constitution.

Now we have the answer. In this dissent, shared by two of the court’s other practicing Catholics, the law of God trumped the laws of our country. Of course, this was not the rationale of their dissent that was couched in the arcana of precedent and statute, interpreted contrary to the majority, to achieve their moral and religious ends.

A sovereign state decided that use of drugs for ending life, under carefully defined conditions, was to be allowed. This was decided by the most direct process of democracy, a referendum. Not once, but twice. This law had been in practice for several years, was not subject to misuse and was achieving exactly the effect desired by the people of Oregon. None of this meant a thing to Thomas or Scalia,, and now, we know, to Chief Justice John Roberts.

The words of John Roberts still echo in the Senate hearing room. “Humility, Respect for the law, limits on enumerated authority of the Federal government……“ so many hollow statements, all to be ignored when his personal, religious beliefs were at stake.

Sandra Day O’Connor, who voted with the majority is about to be replaced by Samuel Alito, who talks the same talk, and practices the same faith as the three dissenters. That would leave us a single seat away from a very different court; a five person majority whose decisions just happen to adhere to the strictures of their religion, rather than the laws of their country.

Let us have no more illusions. The same moral-legal calculus of the dissent that justified preventing tormented cancer victims from ending their own lives, will also prevent the ending of the life of a fetus, whether a day, a month or six months from conception. We wonder whether Roe v Wade will be overturned; based on the logic of this dissent, abortion could very well be made a federal crime.

Democratic Senators, along with moderate Republicans, must stand up for their constituents, who are actually the majority of Americans. You now know what confirmation of Samuel Alito, and those who share his values, will mean. If the Senate is put in crisis; if the nuclear option is invoked, then so be it. If not now, when?

Read the dissent. Buried in its tortuous logic is the outline of a new America. Our laws and the institutions that shape a nation, where final authority resides with the people, will have been transformed. Our laws will have a new caveat, “valid unless contrary to the will of God.”

This will have been imposed under the guise of following the very constitution that is being undermined, by men emboldened with the peculiar arrogance only found by those who claim adherence to a standard higher than that of we mere struggling mortals.

The confirmation vote on Samuel Alito will shape this country for decades. If you concur with my evaluation, we must make our sentiments known. Copy, or send link to this essay; talk to friends. An individual Senator can force a cloture vote. Now is the time to take such a stand.

February 2, 2006

There was an attempt to filibuster by Democrats, that was easily defeated, leading to a 57 to 42 confirmation. Just today, on a hopeful note, Alito's first official action as Supreme Court Justice was to side with the moderates to postpone an execution.

Death Penalty cases are the most partisan in the recent history of this court. At one time, according to Edward Lazarus, who was clerking for Blackmun at the time, Scalia and Rhenquist would automatically vote against any action that would have the effect of delaying an execution, while a few Thurgood Marshall and others were so opposed that they would always vote to cause a delay. Neither of these groups looked at the merits of the case.

From this one vote, it looks like Alito, has shown he is not going to join this group. Roberts, however did join Thomas and Scalia. If Bush only got one out of two of his goal of radicalizing the court, I would be delighted. My greatest hope is that the course of events prove the warning of this essay to be wrong.


Description of Oregon Death with Dignity Law

Text of Supreme Court Decision

How Democrats represent majority in Sanate

Incisive article by Justice Scalia on Church and State