Posted on 06/07/2005 4:38:29 PM PDT by nickcarraway
Yesterday the Supreme Court handed down its decision in Gonzales v. Raich (what was Ashcroft v. Raich, before the U.S. Attorney General was replaced). The case turned on a question of federalism: Does the federal government have the constitutional authority to prosecute individuals under the Controlled Substances Act even for conduct that is legal under a state's medical marijuana laws -- in this case, California's?
The majority answered yes. The Court's liberals have a very expansive view of the Interstate Commerce Clause -- "The Congress shall have Power... To regulate Commerce... among the several States." The majority opinion, written by John Paul Stevens and joined by Ruth Bader Ginsburg, Stephen Breyer, David Souter, and Anthony Kennedy, noted precedents like the absurd 1942 decision Wickard v. Filburn, affirming that the federal government may prohibit a farmer from growing wheat for consumption on his own farm because of the indirect effect on prices in the regulated wheat market. The primary dissent, written by Sandra Day O'Connor and joined in part by William Rehnquist and Clarence Thomas, pointed out that, since the statute in question had an exemption for wheat farms smaller than six acres, even "Wickard did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress' reach."
As Clarence Thomas sharply put it in his own dissenting opinion,
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the Federal Government is no longer one of limited and enumerated powers.
That's just fine with some of the justices; Stevens, Ginsburg, Breyer, and Souter simply don't believe in federalism constraints on Congress. Kennedy sometimes opines in favor of federalism constraints, but SCOTUSblog Reporter Lyle Denniston argues that Kennedy's policy preferences precede his judicial theory: "Kennedy, it has been clear for some time, has little tolerance, judicial or otherwise, for those who are users of drugs, or who resist drug control measures."
But what about Antonin Scalia? Scalia wrote a concurring opinion rather than simply joining the majority because, he writes, "my understanding of the doctrinal foundation on which [the Court's] holding rests is, if not inconsistent with that of the Court, at least more nuanced." His opinion is a dizzying array of hairsplitting and intellectual summersaults designed to show why this case is different from two major federalism cases, 1995's United States v. Lopez (overturning the Gun Free School Zones Act of 1990) and 2000's United States v. Morrison (overturning a provision of the Violence Against Women Act of 1994), which O'Connor's dissent argued were irreconcilable with Raich.
Based on his opinion in the search and seizure case Kyllo v. United States, the theory that Scalia is opportunistically hostile to drug users, Kennedy-style, can be discounted. Rather, he has let his impulse toward restraint get the better of his originalism.
Like most court opinions, Scalia's in Raich is premised on the principle of stare decisis, the doctrine of adhering to precedents except in the most extraordinary circumstances. He assumes that Wickard, Lopez, and Morrison are all correct in order to make his argument in Raich for nuanced doctrinal distinctions that allow for all four conclusions. It's a strange tack from a jurist who has ridiculed the Court for its reluctance to overturn some precedents, notably Roe v. Wade. In 1989's Webster v. Reproductive Health Services (which allowed some regulation of abortion), Scalia wrote in his concurring opinion that "Justice O'Connor's assertion [in her concurring opinion] that a 'fundamental rule of judicial restraint' requires us to avoid reconsidering Roe, cannot be taken seriously." If so, then it should be permissible to reconsider other precedents. By leaving it to judges to decide what constitutes a circumstance extraordinary enough to warrant reconsidering a precedent, the prevailing stare decisis standard invites the sort of mischief that Scalia is fond of warning against: it encourages judges to pick and choose the precedents they target according to their own policy preferences.
Whenever liberals want to argue that Clarence Thomas is really scary, they point out that "even Scalia" thinks Thomas is too quick to throw precedents out the window: Scalia was quoted in Ken Foskett's biography of Thomas as saying that Thomas "doesn't believe in stare decisis, period," adding that "if a constitutional line of argument is wrong, he'd say let's get it right. I wouldn't do that."
Why not?
Scalia wants to be Chief Justice. No more need be said...
I do have to say that Scalia's rationale left me scratching my head. I guess he doesn't want to open the tent to the camel's nose of marijuana, but he sacrificed a lot of conservative principles to do that.
I feel Thomas or Scalia would be a great choice. I think Bush will nominate Thomas just to watch the rats attack a black man.
Thomas and Rhenquist wanted to go for the brass ring of the extraconstitutional 'Intrastate Commerce Clause', Scalia wanted no part of it and thus stare decisis won the day.
Why not? 'Cause he's hoping to make Chief Justice, that's why.
I'm now even more certain than before, that Thomas is the best on that bench, and would make the best Chief Justice.
That is the most insulting thing I have ever heard about Justice Scalia. Perhaps it's true, but he may have made this decision anyway. Do you really think Bush would factor something like this into his decision. Doesn't matter anyway, Hillary Clinton is going to choose the next chief justice, and it won't be Scalia.
Just like conservatives on FR, Scalia and Thomas can disagree.
Each has a good case. I just believe that Thomas has the better case (in this instance).
Have to agree. Scalia politicking for Chief Justice.
Scalia:"Let's ask the 3,500,000 hippies, dope dealers, and Bay Area-educated physicians camped out in the backyard who are anxiously waiting for a go-ahead so they can shove 1,000,000 tons of legal marijuana through that loophole."
Thomas: "Aw, nothing like that will ever happen. The California Assembly promises it won't. Pot will only be used for serious illnesses like backaches. Not even a leaf or single seed of it will leave California and enter the surrounding states, and citizens of surrounding states will not come to California to be prescribed bales of marijuana they can take home in their car trunks. They know they would be in BIG TROUBLE if they did, so I'm sure they won't do that."
Scalia: "You probably believe there will be no money changing hands either, no graymarket let alone a blackmarket for the stuff."
Thomas: "My faith in tormented, suffering, pot-smoking mankind and in the good intentions of the California Assembly is unbounded."
Scalia: "The elected representatives of all the people, including the people who live in states surrounding California, had a different opinion about that when they passed a law to keep that loophole closed, and I cannot conclude theirs is an unreasonable opinion."
Thomas: "Aw, lighten up. It's just two middle-aged ladies growing a little pot in a window sill box. What harm can it cause? I want to judicially legislate an exception just for them. It's the compassionate thing to do."
Could not have said it better myself.
There was no alterior motive by Scalia, he just had a different opinion, him and Thomas do differ sometimes.
Thinking men with spines, like Scalia, are calling it true.
Excellent analysis. The Thomas view of stare decisis is the only way to right the wrongs of past activist courts.
Ya think?
Scalia would not know an unenumerated right if it bit him on the ass. He is apperently too weak to take on the FDR New Deal legacy. Why do we need a chief like that?
Very odd for a "conservative" to support the Socialist New Deal pervertion of the commerce clause.
I'm now even more certain than before, that Thomas is the best on that bench, and would make the best Chief Justice.
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Perhaps, but I think I'd rather see this women:
Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.
- CA Justice Janice Rogers Brown
We no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.
- CA Justice Janice Rogers Brown
The quixotic desire to do good, be universally fair and make everybody happy is understandable. Indeed, the majority's zeal is more than a little endearing. There is only one problem with this approach. We are a court.
- CA Justice Janice Rogers Brown
Government is the only enterprise in the world which expands in size when its failures increase.
- CA Justice Janice Rogers Brown
The public school system is already so beleaguered by bureaucracy; so cowed by the demands of due process; so overwhelmed with faddish curricula that its educational purpose is almost an afterthought.
- CA Justice Janice Rogers Brown
How do you plan to keep Rehnquist alive, much less chief justice, for the next three years until Widebutt runs?
All the mindless sheep are bleating the trendy answer in support of pot.
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Are they? I don't know a single elected Republican offical who has come out in favor of drug legalization (if there are exceptions they just make the rule).
I think the many people who are against our tyrannical drug laws are against them because they think outside of the box... not march with the 'conservative' drum.
I'm not going to do anything. But even if Rehnquist does resign, it's more than probable President Bush will be unable to replace him.
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