[r9etb]

Here we see two 'conservatives' quoting the same decision and arriving at opposite conclusions. I can only conclude that Scalia is not quite the conservative he claims to be.

Oh, pshaw.

When you get right down to it, the difference between Thomas and Scalia boils down to a couple of things.

First, is "honest, officer, I wasn't gonna sell it to anybody," an acceptable excuse in a criminal case? There's a fuzzy line between "growing for personal use only," and "growing for the personal use of others."

Second, it's a matter of the written law as it currently stands.

Scalia's ruling takes into account the fact that it is currently a federal crime (which has passed USSC muster) to possess marijuana, and on those grounds he is not out of line in his ruling -- he's interpreting the law as it currently stands.

Thomas is asking a broader question: should current federal laws on marijuana be repealed or modified? It's a legitimate question, but by going against precedent we must note that it is Thomas, not Scalia, who has taken the "activist judge" stance in this case.

[inquest]

"Judicial activism" doesn't translate to "going against precedent".

[P_A_I]

Questioning the constitutionality of existing law shows "that it is Thomas, not Scalia, who has taken the "activist judge" stance in this case"?

Sorry, but you've got it backwards, imho.

[coloradan]

Is it an "activist" position to decide some law violates the Constitution and should be repealed on that basis?

For example, would a "true" conservative justice on SCOTUS uphold a conviction for violating a gun control law, because the law was on the books, and the law was violated on its face, or overturn conviction because the law violates the Second Amendment on it's face?

What is the non-activist thing to do, when interpreting the law as written conflicts with recognizing the Constitution as the supreme law of the land?

[publiusF27]

Thomas is asking a broader question: should current federal laws on marijuana be repealed or modified? It's a legitimate question, but by going against precedent we must note that it is Thomas, not Scalia, who has taken the "activist judge" stance in this case.

Now wait just a darn minute here. The Raich decision relied on Wickard, which itself was judicial activism. The reason that the original regulations on guns and drugs at the federal level were written as taxes was because it was generally understood at the time that the commerce clause did NOT confer a police power.

Wickard overturned that understanding, in an act of what can only be described as judicial activism. Thomas, in proposing to correct that mistake, is not the activist here.

[tame]

but by going against precedent we must note that it is Thomas, not Scalia, who has taken the "activist judge" stance in this case.

i disagree. original meaning takes "precedent" over precedent.

only by equivocation could the term "activist judge" be used of Thomas.

[Ken H]

It's a legitimate question, but by going against precedent we must note that it is Thomas, not Scalia, who has taken the "activist judge" stance in this case.

Suppose Thomas votes to overturn Roe v Wade; and Scalia, citing precedent, votes to uphold it.

Which is the activist judge?

[MileHi]

Scalia's ruling takes into account the fact that it is currently a federal crime (which has passed USSC muster) to possess marijuana, and on those grounds he is not out of line in his ruling -- he's interpreting the law as it currently stands.

So let me get this straight. This case was to determine if the law is Constitutional, and Scalia correctly determined that because the law exists (based on the New Deal interpretation of the Commerce clause) it is therefore Constitutional?

[Sir Gawain]

First, is "honest, officer, I wasn't gonna sell it to anybody," an acceptable excuse in a criminal case?

Uh, yeah, because the burden of proof is supposed to be on the prosecution.