Opioids and the Supreme Court’s understated opinions

It is rare indeed, especially in these politically polarized times, for the U.S. Supreme Court to decide a case unanimously — especially when overturning a seemingly important criminal conviction. It’s even more surprising when the conviction in question relates to opioids, given the profoundly negative profile they own in America.

Yet this is what occurred with Ruan v. United States, which the court decided on June 27. Two physicians, in unrelated cases, dispensed controlled substances. Their separate juries, the justices said, were improperly instructed about the mens rea (or, knowledge of wrongdoing) requirement for a criminal conviction; the convictions were overturned.

Placed in context, and to properly understand the ruling, when a doctors defends himself at trial saying that he was “authorized” to prescribe a medicine, a prosecutor must prove that the doctor “knowingly or intentionally” acted in an unauthorized manner — that his prescription wasn’t for a “legitimate medical purpose” that was prescribed in the “usual course of professional practice.”

Or, in lay terms, “Doctor, put aside your idiosyncratic practice in choosing to prescribe opioids. More importantly, does the medical profession as a whole do what you did in prescribing these?” So, it makes sense: The prosecutor must prove the physician’s conduct was off-base — i.e., that the doctor “subjectively” knew his prescriptions fell outside the scope of his prescribing authority.  

To be sure, even with a unanimous ruling, it is still virtually impossible for the court’s liberal and conservative wings to be in harmony on nearly anything. Ergo, Justice Samuel Alito’s concurring opinion supported reversing the convictions of Drs. Xiulu Ruan and Shakeel Khan but nonetheless criticized Justice Stephen Breyer’s majority opinion that spoke for the court. Still, the doctors’ convictions and lengthy sentences were thrown out and remanded for new trials.

Here, though, is the interesting thing: The opinion doesn’t once mention the troubling word “opioid” or the particularly addictive drug in question, fentanyl. Nor does it mention that, startlingly, Dr. Ruan had written prescriptions for 300,000 doses of fentanyl during his run of prescribing opioids. What does it say that this astonishing fact is absent from the court’s opinion? I learned about it only by reading the Circuit Court opinions that separately affirmed the convictions and legal reporting about them. 

A legal purist likely would argue correctly that this ostensibly pertinent fact was irrelevant to the jury charge issue the high court considered. However, had there been dissent in the case, it could have proclaimed — albeit with less dramatic phraseology — that Dr. Ruan appeared to be a “pill mill doctor,” given America’s opioid epidemic. The unanimity of the court’s ruling, however, presumably caused the vying legal opinions to be elusive about the underlying facts — without other justices taking shots at a majority opinion over what they might perceive as being too willing to condone.

Now, of course, ideally we want — or should want — a court’s decision-making to remain antiseptically above the daily drama of American life and simply to address the law or constitutionality of a statute without engaging in the Sturm und Drang of today. Doesn’t a court, though, have some kind of an ancillary obligation to inform the public about exactly what it’s doing, especially when its decision might affect society in some significant manner? The Supreme Court, for example, doesn’t employ a spokesperson to respond to questions reporters pose about its decisions. Do we really want journalists, some of whom are legally unsophisticated, to explain the supposed extent of a court decision without the backup of a factually forthright legal opinion — whether they choose to report all the facts or not? 

So, for example, if the court throws out convictions involving the alleged abuse of a doctor’s prescription pad, as in Ruan’s case, we have a legitimate expectation that the court will candidly present all the pivotal facts, even if — or especially when — the facts might potentially impact the public. 

Interestingly, and somewhat in contrast, in the Supreme Court’s decision on June 23 declaring New York’s gun control statute unconstitutional, Justice Clarence Thomas’s majority opinion omitted reference to burgeoning gun violence in America. In that case, though, the dissent laid directly into it — as Thomas, in fairness to him, surely knew it would. Accordingly, the public was given full opportunity to hear the facts from the court’s mouth and then decide whether it agreed with the decision. No need for the observer to learn what was at play from an intermediary communicator, one who might be encumbered by his own agenda or lacks sufficient expertise on the subject.

Again, to be clear, this is not about the merits of the court’s reversing the Ruan and Khan convictions — indeed, on the law, the decision is reasonable and correct, even with the details missing from the opinion. Instead, it’s about whether the court may have become overly concerned that if it candidly discloses all the disturbing probative facts, readers may conclude that the court has gone off the rails.

And if that’s the state of affairs, the court’s infamous polarization is clearly not its only problem.

Joel Cohen, who practices law at Stroock & Stroock & Lavan in New York, is a former member of the New York State Judicial Conduct Commission. He is the author of “ Blindfolds Off: Judges On How They Decide” (2014) and teaches about judging at both Fordham and Cardozo Law Schools.