Sunday, June 3, 2007

More on the Seattle Decision

An editorial today from the NY Times by Adam Cohen appears to agree with On the Docket's prediction about the USSC striking down the integrationist-tie breaker.

Yet, the editorial appears to contribute the decision mostly to the changing ideology of the Court rather than constitutional jurisprudence and precedent. Cohen rather harshly blames Justice Thomas for the predicted outcome of the Seattle decision.

It is hard to say, whether or not Cohen is right, but the evidence from the oral argument transcripts appear to point in the other direction. Liberals on the Court such as Justice Breyer and Justice Souter appear to be the ones whom Cohen should blame. Both Souter and Breyer upheld the affirmative action program seen in the University of Michigan Law School case in 2003, but it appears that they have a different take on the integration plan by Seattle. They do so not because they are not liberal, but rather because the motivations and rationale behind the Seattle integration plan are different. Applicants are chosen solely on the basis of race, rather than an individualized selection process which also takes into account academic merit of the applicants. Take a look at what was said during oral arguments:

JUSTICE SOUTER: Let me help you out by taking you back to my question. One of the characteristics of the affirmative action cases was the displacement of some other otherwise generally acknowledged relevant criterion such as ability as shown in test scores, grade point averages, things like that; and that was a characteristic of those cases.

It is not a characteristic of this case, as I understand it.


JUSTICE BREYER: But I think that the point that Justice Souter is trying to make, as I understand it, is of course there are similarities to Gratz, they can choose, but there's a big difference. The similarity in Grutter, or the difference in Grutter and Gratz is that you had to prod a school that was supposed to be better than others, that the members of that school, the faculty and the administration tried to make it
better than others. It was an elite merit selection academy. And if you put the black person in, the white person can't get the benefit of that.

Here we have no merit selection system. Merit is not an issue. The object of the people who run this place is not to create a school better than others, it is to equalize the schools. That's in principle and in practice, if you look at the numbers, you see that the six schools that were at the top, their position would shift radically from year to year, preferences was about equal among them. They have the same curriculum, they have similar faculties, and I don't think anyone can say either in theory or in practice, that one of these schools happened to be like that prize of University of Michigan, a merit selection system. That, I think, was a major difference that he was getting at, why is this not the same kind of thing? That was at issue in Grutter and Gratz. Now what is your response to that?

Cohen makes a weighty claim against Justice Thomas. Thomas, himself, as Cohen points out does, not say very much during the oral arguments, so it is hard to tell what is going on his his mind about the intergrationist tie breaker at this point. Given previous rulings, though, he will most likely vote against it. Yet, it appears that the Seattle decision will have more than just Thomas advocating against it.

The Right to Die

Dr. Jack Kevorkian, also known as "Dr. Death," was recently released from prison after serving an eight year term. His conviction of helping 130 terminally ill people commit suicide brought to the national spotlight the debate on the right to die and to die with dignity.

Kevorkian was convicted of second-degree murder by assisting a suicide in Michigan. It is interesting to characterize Dr. Kevorkian's actions as murder instead of aid. Is he an accomplice to a crime or is he actually committing a crime by himself? In other words is suicide a crime even if the patient expresses the wish to die? USSC precedent on this issue remains rather silent and decisions such as Glucksberg v. Washington have made it clear that the Court has not decided this issue in past cases. Justice O'Connor in her concurring opinion makes this quite clear. She says:

"The Court frames the issue in this case as whether the Due Process Clause of the Constitution protects a "right to commit suicide which itself includes a right to assistance in doing so," ante, at 18, and concludes that our Nation's history, legal traditions, and practices do not support the existence of such a right. I join the Court's opinions because I agree that there is no generalized right to "commit suicide." But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. See ante, at 18 ("The Washington statute at issue in this case prohibits `aid[ing] another person to attempt suicide,'. . . and, thus, the question before us is whether the `liberty' specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so"). "
The issue of the mental capacity of those wishing to die is another issue entirely, but the debate over the legality of suicide does not end there. What about those who wish to die that are in perfect health and have families to support? It seems that the issue comes down to a right to privacy--the right to be left alone. This right to privacy, however, must be balanced with the effects of granting that right. For example, if a single parent wishes to commit suicide, should our laws allow her to do so, given that she is raising and supporting a child? What effects would her suicide have on the child? It is an issue that has been raised before by John S. Mill in his essay On Liberty. He says:

"I fully admit that the mischief which a person does to himself, may seriously affect, both through their sympathies and their interests, those nearly connected with him, and in a minor degree, society at large. When, by conduct of this sort, a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term. If, for example, a man, through intemperance or extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a family, becomes from the same cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance. If the resources which ought to have been devoted to them, had been diverted from them for the most prudent investment, the moral culpability would have been the same."

But he goes onto say:

"But with regard to the merely contingent or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom."

It appears, thus, that Mill would allow for an individual without any obligation to others to have the right to die. It will be interesting to see if any challenges reach the Court now that Kevorkian is out of prison and has said that he will challenge the current thinking about assisted suicide. It will be interesting as well to see how the Court handles these arguments.