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Wednesday, July 22, 2009

Featured Guest Blogger: Justice Barry Schaller

As a New Generation Grows Old, New Challenges for Constitutional Law
by Justice Barry Schaller

Problems relating to an increasingly aging population may bring several issues to the courtroom. As baby-boomers reach the ranks of the aged and progressive dementia affects a growing portion of our population (although recent medical advances hold promise), issues of autonomy, gene therapy, pressure for physician-assisted suicide, and the freedom to use controversial drugs for pain, and even for assisted suicide, may well face the Court. All these issues of aging will pit the will of individuals to exercise their freedom to control their lives against the interest of the government in regulating the outer boundaries of what is permissible as the end of life approaches. As with enhancement issues, the late-in-life issues usually don't elicit opposition as extreme as that raised with regard to beginning-of-life issues.

The issues of aging are likely to arise in various forms. Measures aimed at the legalization of drugs and physician-assisted suicide are likely to arise when authorization of such measures by state legislatures are challenged by opponents. Moves to legalize marijuana for medical purposes have already gained force in a number of jurisdictions, suggesting that we may already be on the brink of action on that measure. Gene therapy is likely to continue advancing within the science field until it reaches a point at which it appears threatening enough to the traditional views of enough state or federal legislators to take action seeking to control controversial applications. The proponents of scientific freedom and personal liberty will base their positions on autonomy and privacy interests; opponents will challenge based on arguments that federal constitutional protection does not apply to those who wish to take advantage of gene therapy. Questions of capacity - and personhood - are involved in issues of aging, just as with issues of reproduction.

In this area of litigation, the Justices may be more inclined (than with reproductive technology) to give legislatures latitude to make decisions rather than intervening. This deference is more likely when legislatures act to extend or expand personal liberty (as with drug legalization and assisted suicide) as opposed to curtailing or restricting liberty (as with restricting measures such as gene therapy). The exception to that deference is when extending or expanding rights takes place to the detriment of others (viewed in the broadest sense, such as fetuses, in the case of abortion, or embryos, in the case of genetic selection.) Here again, a crucial factor is how Justices read the Constitution -- narrowly or broadly, as a document limited to its historical meaning or a document that speaks to the contemporary world-- but, again, deference to state legislatures may carry the day even in the face of federal constitutional challenges from either side of the issues.

With regard to all these issues, and the following ones that I will briefly mention, a crucial question for a Supreme Court nominee is whether the candidate believes in the value of apprehending public opinion. I use that term with great caution to refer to the state of public knowledge and acceptance of present cultural developments -- in the broadest sense, encompassing social, economic, scientific, religious, and political among other factors. I do not mean, of course, that justices should follow the polls or attempt to predict public approval of any particular decision. One of the great strengths of retired Justice Sandra Day O'Connor was her capacity to reach results that worked in a practical sense - in the real world - and to bring about decisions that garnered a sufficient level of public acceptance and approval to maintain the authority and respect for - the legitimacy -- of the Court as an institution in our democracy. I suppose that one might ask whether a nominee could approach her level of mastery of jurisprudence that is principled and pragmatic - principled enough to be predictable and reliable, pragmatic enough to work in the world we live in. Many other questions arising from developments in science and medicine are likely to be presented to the Supreme Court. Most of them are likely to arise within the general Constitutional framework discussed so far. What is the authority of Congress to regulate stem cell research? Should research using non-human animals, a subject that is receiving serious ethical attention now, be regulated more extensively? Is it time to slow down the expanding practice of patenting human genes? What will happen with patenting of life forms that challenge the very concept of "personhood" such as the language-altered mice?

A nominee's general thinking on the broad contours of these and other powerful cultural changes in our society that will result from medical and scientific advances is important. While a nominee should not be called on to give specific answers to questions that are likely to arise in Court, the world view of candidates for our highest Court concerning vital issues and forces that will affect our way of life would be a welcome addition to our faltering public discourse and might even increase respect for Congress and the Court.

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