Roberts and Scalia, peas in a pod?

In his first dissent, the chief justice aligns himself with the far right.

Published January 17, 2006 7:10PM (EST)

During his confirmation hearing, John G. Roberts declined to say whether he thought families, rather than state legislatures, ought to be making end-of-life decisions for loved ones. "Well, Senator," Roberts said as he brushed away a question from Joseph Biden, "that does get into an area that is coming before the court."

The soon-to-be chief justice was referring to Gonzales v. Oregon, a case in which the Bush administration argued that the attorney general has the power to trump state law and effectively outlaw physician-assisted suicide. Roberts wasn't about to comment about the case during his confirmation hearing, but we know how he thinks about it now: just like Antonin Scalia.

The Supreme Court handed down its decision in Gonzales v. Oregon today. A six-judge majority rejected the Bush administration's attempt to outlaw physician-assisted suicide in Oregon and took the Justice Department to task for attempting a "radical shift" of power from the state to the federal government. Three justices dissented: Scalia, Clarence Thomas and -- in his first turn on the losing end of a case since becoming chief justice -- Roberts.

Roberts didn't write his own dissenting opinion, but he joined Scalia's. Scalia said that the six justices in the majority may have reached their conclusion based on "a feeling that the subject of assisted suicide is none of the federal government's business." While he said it was "easy to sympathize" with that view, he said the federal government has long intruded into areas once thought to be the province of the states. Thus, he said, "Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible."

That doesn't sound much like the kind of federalism-based argument that supporters of Roberts and Scalia advocate, but it sure leads to the answer the Bush administration wanted. And if that sort of results-oriented judging sounds familiar to you, maybe it should.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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