On Tuesday, Bush appointee Judge Richard Leon of the U.S. District Court for the District of Columbia banned the importation of sodium pentothal (also called Thiopental), which many states had been importing because domestic production of the drug has been on hold, and it is a part of the chemical cocktail that is used for lethal injection executions.
Pentothal has not been manufactured in this country in about 18 months, and supplies have pretty much run out. The sodium pentothal is used to put the inmate to sleep while other medications stop voluntary muscle movement and then a final chemical stops the heart.
US execution chambers had turned in desperation to a number of overseas suppliers, including Dream Pharma, a one-man operation above a driving school in Acton, West London, after domestic production of sodium thiopental ceased.
Judge Leon was particularly scathing about the U.S. Food and Drug Administration (FDA)’s failure to carry out its regulatory duties, accusing it of a “callous indifference to the health consequences of those imminently facing the executioner’s needle.”
“Here, the threatened injury — that unapproved foreign thiopental will fail to anesthetize plaintiffs properly during execution, causing conscious suffocation, pain, and cardiac arrest — is, to say the least, severe,” the judge wrote. “Indeed, few in our society are more vulnerable than a death row inmate facing lethal injection.”
Leon also said that the FDA was undermining its own policy of maintaining a closed drug distribution system designed to keep dangerous drugs out of U.S. commerce.
“By opening up the ‘closed’ drug system by allowing an unapproved drug — thiopental — into the United States, defendants jeopardize their own system and threaten the public health by creating a risk that thiopental could incorrectly end up in the hands of the general public,” he wrote.
He ordered the FDA to “immediately notify any and all state correctional departments which it has reason to believe are still in possession of any foreign manufactured thiopental that the use of such drug is prohibited by law and that, that thiopental must be returned immediately to the FDA; and … be permanently enjoined from permitting the entry of, or releasing any future shipments of, foreign manufactured thiopental into interstate commerce.”
Since sodium pentothal has not been manufactured in this country in a long time, some states have turned to a chemical relative — pentobarbital — to serve the function of putting the inmate to sleep, but supplies of pentobarbital are also running low.
Interestingly, Judge Leon was a Bush 43 appointee, with a long history of serving in Republican Administrations (DOJ under Reagan, worked for the Republicans during the Iran-Contra investigation, Deputy AG under Reagan). Not your typical bio for someone who is being accused of being a liberal “judicial activist.”
Of course, you may remember that during the debate over the health care reform bill, one issue was whether foreign-made drugs could be brought into the U.S. to compete with domestic-made drugs to hold down costs. The Republicans/conservatives argued that we couldn’t allow that, because the drugs might be impure, or contaminated, or diluted, or worse. There is in fact a significant percentage of drugs bought from other countries — usually through illicit channels such as anonymous e-mail addresses — that have been contaminated, or diluted, or that are just ineffective sugar pills. But isn’t it interesting that — at least in this case — the Republican/conservative argument is that we have to be allowed to import foreign drugs, under what I suppose is a “death penalty” exception to the Food and Drug Act.
Immediately, some conservatives jumped up and screamed, “Judicial activism!”
Putting aside the question of conservative/liberal or Republican/Democratic, why is this an example of judicial activism? I guess it depends on how you define “judicial activism.”
Former Bush Solicitor General Theodore Olson has mockingly characterized the label; “most people use the term ‘judicial activism’ to explain decisions that they don’t like.” Democratic lawyer Kermit Roosevelt III agrees: “in practice ‘activist’ turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with.”
If you want to get more analytical, political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist:
- Interpretive stability
- Interpretive fidelity
- Substance/democratic process
- Specificity of policy, and
- Availability of an alternate policymaker.
Since the choice of using sodium pentothal is not a legislative choice in most instances, majoritarianism and faithfulness to a democratic process would not seem to be applicable. I am not aware of any prior decisions on point, making interpretive stability and fidelity irrelevant. Under the legislatively enacted FDA, the courts are the appropriate decisionmaker on this issue. “Specificity of policy” refers to the general inappropriateness of using a court to make specific implementation decisions, and that isn’t applicable.
Less philosophical is the analysis of David Strauss, who has argued that judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution. This judge did not overturn anything as unconstitutional; he overturned no precedent; and he did not rule against any interpretation of the Constitution, much less a preferred interpretation.
Or are we in fact back to the Olson/Roosevelt definition – it is used to explain decisions that the speaker disagrees with?