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Originally Posted by creekster
Of course this opinion deals with the interpretation and application of an exisiting federal statute that governs not the relationship of drs. and patients but the prescription of controlled substances to patients. Was the Ashcroft regime incorrect in their interpreation? Certainly 6 justices thought so. It is incorrect, however, to say that Roberts was being activist, at least IM-not-fully-informed-O. He simply contended that an existing statute applies not only to prevent the mis-prescription of controlled subtances for conditions that they are not intended to ameliorate, but also to efforts to kill.
Another way to look at this is this: If one ignores the fact that one likes or doesn't like the result of the opinion, what is it baout this opinion (or any other opinion, for that matter) that makes this deciison "activist?" Activism, after all, must be defined apart from the results in order to allow reasonable analysis, so how so you define it?
btw, sorry for the lame typing; not my strong suit.
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As a guarded fan of Scalia and Thomas I will say, nevertheless, I do feel they sometimes do reveal a usually concealed penchant for moralizing. No, they weren't interpreting the Constitution, so technically strict construction doesn't apply. But the objective of strict construction is to err on the side of the democratic process, adhere to some neutral principle so that judges elected for life don't devour the majority's will. Scalia and Thomas condemn judges who permit their own subjective moralizing preoccupations to override the will of the majority expressed through legitimate democratic process. On that principle, they should be sensitive about the federal executive branch using a strained interpretation of a federal statute to invalidate the will of the majority in the state of Oregon. At times like this I get the queezy feeling that "strict construction" is just a cover for subjective moralizing on their part.