Bench Memos

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Oregon, Federalism, and Results


Today’s Wall Street Journal has an editorial (subscription-only) applauding yesterday’s Supreme Court ruling in Gonzales v. Oregon. But the Journal’s thinking here is quite a muddle. The editors like the result, at least as far as federalism goes (they take no position on physician-assisted suicide). But their own account of the reasoning employed by the justices finds more to praise in Justice Scalia’s dissent than in Justice Kennedy’s opinion for the Court, which they say “jumps through logical hoops” to get where Kennedy wants to go. And they all but endorse “Justice Thomas’s suggestion [in his dissent] that this is [a] case of results-oriented jurisprudence in federalist drag.”

So what’s to praise about this ruling? The Journal seems to think that the Bush administration got a comeuppance for “abandoning for political purposes what ought to be its own federalism principles.” Okay, but if the dissenters score more points in logic and constitutionalism, what does that tell us about those “federalism principles”? Perhaps that they aren’t so real as they appear, at least when it comes to the authority judges are called upon to exercise.

The Journal o’erleaps all these internal inconsistencies with a final sentence that takes great nerve: “Results-oriented jurisprudence isn’t any more admirable from the right than it is from the left.” First it should be noted that former AG Ashcroft was not practicing jurisprudence when he promulgated the rule struck down yesterday. He was making public policy in light of jurisprudential principles that the Journal itself admits were stronger on his side than on the other. It’s fine for the Journal to endorse a version of public-policy federalism that would do something other than what Ashcroft did. But conflating that view of right public policy with the Constitution itself, as in the admittedly weaker jurisprudential arguments of Justice Kennedy? That’s the Journal being result-oriented, in the very arguments it employs to lodge the accusation against the Bush administration.


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