I have now read the majority opinion. It wasn’t judicial activism. Indeed, the Supreme Court’s majority decision is not a broad endorsement of assisted suicide. In essence, the Court ruled that the Attorney General exceeded his authority in interpreting the Controlled Substances Act. Primarily, the AG is criticized for seeking no outside authorities for his conclusion. I think that is a strong criticism of the Ashcroft approach. I have always stated that the better way would have been to do a formal Notice of Rulemaking and get a wide array of opinions. The Court also seemed to indicate that an interpretation of a purported medical use of controlled substance should come from the Secretary of Health and Human Services, rather than the AG.
The Court also seemed to rule that the Congress would be authorized to create uniform national standards for the medical use of controlled substances. That has been tried with the Pain Relief Promotion Act a few years ago, which failed to surmount a senate filibuster.
The forces supporting assisted suicide will spin this as the Court’s imprimatur on doctors hastening death. It is no such thing. It is a narrowly crafted law steeped in the arcania of administrative law.