They camped out on the sidewalk between the Supreme Court building and the U.S. Capitol. On this cold January 8 predawn morning, a reporter from The Washington Post interviewed several hopeful spectators, some huddled and shivering under blankets, who wanted to be in the courtroom for that day's oral arguments over physician-assisted suicide.
As the dawn broke, the reporter was interviewing a 53-year-old wheelchair-bound woman when Harvard's Lawrence Tribe walked by on his way to make his pro-euthanasia arguments to the Supreme Court. The woman, Eleanor Smith, stopped the interview as the smiling, well-dressed law professor passed. "It's creepier than seeing a man with a gun," she remarked. "It's like someone who's calling you softly, whispering, 'This is for your own good.'"
Inside, Mr. Tribe spoke louder. He made a philosophical, this-is-for-your-own-good argument: "I think the liberty interest in this case is ... when facing imminent and inevitable death, not to be forced by the government to endure a degree of pain and suffering that one can relieve only by being completely unconscious. Not to be forced into that choice, that the liberty is the freedom, at this threshold at the end of life, ... to have some voice in the question of how much pain one is really going through."
"Why does the voice just arrive when death is imminent?" asked Justice David Souter. According to press accounts, none of the justices seemed impressed with this legal concept.
Mr. Tribe answered: "The court's jurisprudence has identified, I think for good reason, that life, though it feels continuous to many of us, has certain critical thresholds: Birth, marriage, child-bearing. I think death is one of those thresholds. That is, it is the last chapter of one's life after all...."
Justice Antonin Scalia seemed to have heard enough: "All of this is in the Constitution? ... You see, this is lovely philosophy. But you want us to frame a constitutional rule on the basis of that?"
Yes, he did. Eleanor Smith hopes, for the sake of people like her, that "lovely philosophy" doesn't carry the day.
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