I have been reading stories about the oral arguments in the Supreme Court yesterday in Gonzales v. Oregon. It is often said that predictions cannot be made based on oral arguments. Bunk. In every appellate case in which I have been involved or observed, it was easy to discern at least the general state of play. And from what I have read, it looks like a closely divided court. Indeed, the swing vote may be Justice O’Conner or her replacement.
Justice Ginsberg’s response to the truth that non controlled substances could be used in assisted suicide thereby permitting Oregon’s law to continue on, got me thinking about something. She responded that these other methods might not be so gentle. Whether true or untrue, that becomes a policy decision, not a judicial one.
Ginsberg is an elite member of the elite, as are most members of the Supreme Court and the federal judiciary. This is why, particularly with social or cultural issues, the courts so often reflect the cultural values of the upper strata. (Again, this is a general statement, not an all-inclusive one).
Assisted suicide is a policy of privilege. Contemporary proponents are relatively few, but very committed. They tend to be upper middle class or higher–often women. Barbara Coombs Lee, a former managed care vice president wrote the Oregon law. Kathryn Tucker, the attorney for the gooey euphemistically-named euthanasia group Compassion and Choices (formerly Hemlock Society), is an attorney for an elite corporate firm. Betty Rollins, the television journalist, has for years pushed assisted suicide after helping kill her mother is part of the Manhattan ruling class. Dr. Timothy Quill, qualifies. They also are almost always white and have social structures in place so they can be sure they will not be pushed out of the lifeboat. (The prime exception is Jack Kevorkian, who while non elite, was embraced wholeheartedly by the elites. For example, he was feted at Time magazine’s 75th anniversary where Tom Cruise rushed up to shake his hand.)
Opponents, with some exceptions, are not elitists. Disability rights advocates, are prime examples. They understand that gaining access to quality health care is the real challenge for many Americans and that assisted suicide targets the disabled. Pro lifers are hated by the elites. The Catholic Church, while certainly wealthy, is under constant attack by the cultural elites, particularly in the media. Advocates for the poor who see a great threat to indigent, uninsured patients if we transform killing into a medical treatment are not part of the ruling class. Civil rights advocates, such as LULAC, the largest Latino civil rights organization in the country that advocates for farm workers and others, opposes assisted suicide.
I believe under the law, the U.S. Government should win this case. But assisted suicide litigation has always been steeped in the politics of privilege, leading to some overtly political results. So, I am taking no bets.