Editorial

Make no mistake about it: We have a different Supreme Court with John Roberts replacing William Rehnquist as chief justice. While the new chief's votes are likely to be similar to those of his predecessor, at least initially, that does not mean that we can expect a status quo court.

An early test for the new court is Oregon's Death With Dignity Act, which was argued Oct. 5. If the case had been argued two years ago, the Oregon law would have survived by a vote of at least 6-3. For a variety of reasons, the outcome now, however, is far less certain.

Unfortunately for Oregon, California's marijuana law reached the court first. In Gonzales v. Raich (2004), the justices decided 6-3 that federal law criminalizing marijuana prevailed over California's law allowing its medical use. The three dissenters to that opinion would have been reliable supporters of Oregon's law on the grounds of federalism, the idea that states should be permitted to act as experimental laboratories for innovative policies.

But that court's chief justice is dead, and Justice Sandra Day O'Connor is a lame duck -- her vote will count only if the case is decided before her successor is seated and if there is a six-vote majority for Oregon. Why? Because O'Connor is retiring, and the court will not issue a ruling with her casting a decisive fifth vote. Moreover, Justice Clarence Thomas, one of the dissenters in Raich, might conceivably switch sides because the case is now precedent. Still, O'Connor and Thomas start with an inclination to support Oregon's law.

Federal law makes all marijuana possession criminal, yet it permits Oregon doctors to write prescriptions for marijuana. Nonetheless, Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer would favor the federal government's position if the only issue were competition between federal and state power. But it isn't.

Two other issues with bearing on the case are whether Congress really intended the attorney general's office to interfere with Oregon's law under provisions of the Controlled Substances Act and whether a dying person has an individual claim that might influence the decision. (Strangely, no such claim was argued in the California case.)

Based on their questions during oral argument and their prior writings, Ginsburg, Stevens and probably Justice David Souter will side with Oregon. That makes five probable votes to uphold the Death With Dignity law. The outcome, then, will likely depend on Justices Antonin Scalia, Anthony Kennedy, Breyer and the new chief justice.

Scalia said publicly in Portland in 2002 that he did not see any problem with the Oregon law, but it is nonetheless likely that he will vote with the federal government given his concurrence in Raich. Put Breyer down on the side of the federal government also, given his unjustifiably great faith in the merits of the federal administrative bureaucracy. Kennedy admitted at oral argument that this was a particularly tough case, so he may vote the federal government's position also. If Scalia, Kennedy and Breyer really do vote against Oregon (I actually think at least one of them will break ranks and the Oregon law will be upheld), the sixth and decisive vote will need to come from John Roberts.

How Roberts presides during the court's closed conference (which we won't know) and how and on what basis he votes publicly will tell us volumes more than confirmation hearings about what kind of chief and, to a lesser extent, what kind of court we now have.

If Roberts is really a proponent of judicial humility and restraint, he will take a page from Justice Wiley Rutledge 58 years ago, concluding that tough constitutional issues should not be decided unless "strictly necessary."

His opinion, then, should simply read: "It is not clear that Congress intended for John Ashcroft to have power to interfere with Oregon's law, and we interpret federal law as withholding that power. If Congress feels strongly to the contrary, they can pass a new law expressly pre-empting Oregon. If this occurs, it will be time enough for us to decide the difficult constitutional questions posed by federalism vs. individual rights."

I hope and believe this is indeed the character of our new 17th chief justice.

Stephen Kanter is a law professor at Lewis & Clark Law School in Portland.

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