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Sam Heldman


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Tuesday, September 27, 2005
Oh, and...

Cases for October 5, 2005
No. 04-623 Gonzales v. Oregon
This is the assisted suicide case. Tough to predict, as will be many cases this year. The old adage that the Court doesn't grant cert. to affirm can't apply here, since two members who may very well have voted to grant cert. in order to reverse might not be around for the decision. A case that might otherwise have produced a 5-4 decision could go 6-3 the other way. This case in particular presents problems because like last year's case, Gonzales v. Raich, it pits federalism interests (states' interest in deciding controversial issues like assisted suicide and medical marijuana) against traditionally conservative views, e.g., that the federal government should have limited powers; that suicide (or marijuana) is always morally wrong. In Raich, the commerce clause and increased federal power won over federalism concerns, with the majority consisting of everyone but O'Connor, Rehnquist, and Thomas. Mainly because of the method by which the Attorney General implemented the ruling at issue here (that assisted suicide is not a legitimate medicinal purpose), I think the Raich majority will again reverse the 9th Circuit and hold for expansive federal power. REVERSE

No. 04-698 Schaffer v. Weast
This is a case about whether parents of a disabled child who appeal whether their public school has provided an adequate Individualized Education Program (under the Individuals with Disabilities Education Act "IDEA") have the burden of proving that the IEP is inadequate, or whether the school system must prove that it is adequate. The Fourth Circuit held that the parents have the burden. For the reasons stated in Judge Luttig's dissent in the 4th Circuit, I think the Court will REVERSE.

Update: On Nov. 14, the Court Affirmed the Fourth Circuit. The opinion is here.