Roberts' Assisted Suicide Quote Revealing

By Stephen Henderson, Knight Ridder/Tribune Information Services, July 26, 2005

WASHINGTON - (KRT) - John G. Roberts had no reason to be guarded in 1997, when he was asked on a TV news show about a recent Supreme Court decision in an assisted-suicide case.

But he didn't talk about moral absolutes or the sanctity of life. He didn't even hint at his personal views on the subject. Roberts, then a lawyer in private practice, framed the issue in terms of limits on judicial power and deference to the public will as expressed by legislators. For him, it was a simple question of who gets to decide.

"I think it's important not to have too narrow a view of protecting personal rights," Roberts said on PBS' "The NewsHour with Jim Lehrer." "The right that was protected in the assisted-suicide case was the right of the people through their legislatures to articulate their own views on the policies that should apply in those cases of terminating life, and not to have the court interfering in those policy decisions. That's an important right."

The remarks by Roberts - who's now President Bush's nominee for a seat on the Supreme Court - are revealing, court watchers say. They speak to principles of judicial restraint and non-intervention that are evident in much of his record. Roberts sees limits on federal authority not just as a stricture carefully written into the Constitution, but also as an affirmative protection of individual rights.

The quotation also demonstrates that his views of the law and the role that courts play in governance may be quite different from his personal views as a Catholic.

His thoughts as expressed on the show also may foretell his approach to one of the first cases he would confront when the court returns to business in early October, if the Senate confirms him in time. The third case on the Supreme Court's docket this fall involves deciding who should have the final say over whether assisted suicide can be legalized in Oregon - Oregon residents or the federal government.

"I think the quote highlights a general theme of his, which is to observe the separation of powers and the structural aspects of the Constitution with special care," said Douglas Kmiec, a constitutional law professor and former head of the Department of Justice's Office of Legal Counsel under President Ronald Reagan. He was on the PBS show with Roberts.

"And I think it's important to point out that this approach is not a formula for a conservative court or a liberal court. It's just a formula for a faithfully democratic court," Kmiec said.

If the Supreme Court were to rule guided by such a consistent view of limited federal authority, for example, it might limit Washington's power to enforce civil rights or environmental regulation.

But it also could similarly restrain efforts to enforce federal legislation asserting conservative moral values, such as laws against assisted suicide and medical marijuana. It also might frustrate efforts to compel states to adopt a uniform view on gay marriage.

"If you take Roberts' quote at face value," said court historian David Garrow, "it's really the clearest sign yet that this is like Sandra Day O'Connor or William Rehnquist, and not Antonin Scalia. It's populist democratic and therefore not in line with the way many liberals see the court. But the person who said that is not someone from national right-to-life, either."

Temple University law professor Craig Green agreed that Roberts' quote was revealing about his views on state authority, but he cautioned against reading too much into it. In the 1997 case, he pointed out, the court approved a Washington state law that banned assisted suicide - so in upholding limits on federal authority in that case, conservatives on the court didn't face the consequence of affirming a policy decision they may have disliked.

The Oregon law before the court this fall permits assisted suicide and therefore may pose a more difficult question for social conservatives.

In addition, the 1997 case involved a dispute between courts and a state legislature, while the Oregon case this fall asks whether the Department of Justice - interpreting a law passed by Congress - can trump a state legislature's decision.

"His quote has very careful phrasing that doesn't commit him to any political position, and I tend to think there's a whole slice of Washington life that endeavors to do that," said Green, a former Department of Justice employee.

In some ways, Green said, the Oregon case could be an important early test for Roberts. Is he truly committed to the idea that these are exclusively state questions and willing to accept that states may pursue policies with which he doesn't agree? Or will he find a way to uphold federal interference where it suits his political aims?

"I think it's hard to tell, but we'll know soon enough," Green said.

Garrow said Roberts' 1997 quote exhibits how singular Roberts' thinking can be.

"The phrasing of it is so atypical, almost original," Garrow said. "I think it's an important indicator of what kind of justice he might be."

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