Justice O'Connor was still on the Court--her "last hurrah" so to speak. We won't know for certain until someone decides to talk, but Kennedy was clearly wavering at oral argument (worrying about the possible consequences of each outcome) while O'Connor seemed a safe vote for Oregon given her aggressive questioning of the U.S. (esp. in suggesting that the regulation of medicine is a "traditional state power"). Joining the majority allowed Kennedy to vindicate state's rights and individual autonomy in one fell swoop, and to have the most influence on an exceedingly important opinion. The 6-3 outcome may mask complicated positions, and I have to believe that Justice Alito would have inclined toward the Government's position and perhaps moved Kennedy in that direction.

Just as important, the general climate was highly conducive to the Court seeing this as a serious separation of powers case. In other words, this was another case involving a power grab by the Executive Branch a la Hamdi v. Rumsfeld. The breaking news about secret spying surely didn't help. The opinion says that "the Attorney General claims extraordinary authority," effectively arguing that the statute "delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality." Hello, slipperly slope!

Once a majority of the Justices framed the issue this way, the rest of the administrative rule-making analysis and statutory interpretation fell into place. The goal was to permit multiple layers of involvement in the regulatory regime: The CSA delegated "divided" authority among different executive agencies, it expressly contemplated state regulation of the practice of medicine, the phrase "legimitate medical purpose" could reasonably include death-inducing behavior by physicians, and so on.

Ever the proponent of the exegetical approach, Justice Scalia is willing to read the word "control" broadly to include all processes involved in the manufacture and distribution of drugs, rather than as the majority reads it, namely that it is narrowly addressed to recreational use and distribution of illicit drugs. The new Chief, John Roberts, experiences a mindmeld moment with Scalia on this matter, and he joins the opinion.

Scalia's most revealing comment comes near the end of his dissent, in which he admits that he has no trouble with the attempt to impose "public morality" on a national scale--apparently even when it is imposed by the executive alone.

An interesting question is why Oregon lost Justice Thomas, who is moved to write separately. Remember, Thomas dissented in Gonzalez v. Raich, in which the Court struck down California's medical marijuana law as interfering with the CSA's regime. The state had an extremely difficult argument because Congress has specifically enacted a law listing marijuana as a schedule I substance. By contrast, the Republican Congress had tried to ban assisted suicide and failed to muster enough votes before Ashcroft issued the interpretive rule.

There are three possible explanations for Justice Thomas' sudden coolness toward federalism. First, he really does believe that Raich decided every possible federal-state question that could arise involving the CSA. I think this is unlikely--not even Scalia would go that far in his devotion to stare decisis--and Justice Thomas has in other federalism cases shown a willingness to narrowly construe inconvenient precedent. Second, he does not particularly believe that life-ending decisions are the kinds of things that implicate core state powers. A third possibility is that he is personally opposed to suicide of any kind, and his willingness to permit the cultivation of national moral standards trumps his sympathy for state sovereignty. In my view, the answer involves some combination of explanations two and three.