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?
I always thought that Scalia would be the best choice for Chief Justice.
This decision changes my mind. I now think Clarence Thomas is the only true Constitutionalist on the Court, and so I hope Bush nominates Thomas for Chief Justice.
Way wrong. He, in effect, signed his name to the anti-constitution coup that FDR promulgated with court-stacking.
I couldn't disagree with you more. Bush will replace him this summer.
I think the point is that this particular precedent would be far-reaching if overturned. The case being narrow, it wasn't appropriate to not consider the wider effects. No?
I agree.
I hope so, but last time I checked he doesn't have 60 votes.
I just don't think conservative justices need to worship at the altar of stare decisis when that altar was created, or at least the decisions, by liberals.
At some point, you reverse bad law.
He'll only need 51. Trust me.
Exactly right. Thomas is apparently the only justice on the court who consistently adheres to the Constitution and our founders' intent.
There have been some excellent ananylsis concluding this same thing. While Scalia is true to formality it is only Thomas that actually consults the original intent or the why of the Constitution. He is our hope, but don't get me wrong Scalia's formality can right many wrongs also.
Yes, Scalia and Thomas can disagree -- but when's the last time Scalia voted with the entire liberal judge bloc against Thomas, Rhenquist and O'Connor?
I'm sure FReepers can remind me of a time, but I sure can't remember it.
Who was with Scalia in the wine shipping case? I know the conservatives were split on that one I think.
I'm pretty sure in the flag burning case, he was with the libs. Scalia has always had a weird version of a libertarian streak but also alot of stare desis in him too.
God help us. The Supreme Court sure as hell won't.
"Perhaps, but I think I'd rather see this women:
CA Justice Janice Rogers Brown "
How about both on the SCOTUS bench? I'd be happy to have either as Chief Justice.
And while we are dreaming, who should be replaced? I think the removal of Ginsberg (Ginsburg, whatever) would be most beneficial.
I can think of one case from 1990 - Maryland v. Craig in which the SCOTUS held that:
"The Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them at trial."
The majority was formed O'Connor (who wrote the opinion) and Rehnquist, White, Blackmun and Kennedy. Scalia wrote the dissent, which was joined by Brennan, Marshall and Stevens. Famously he wrote:
"The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional, I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction.".
You simply can't help but smile when you read this :-).
The rats already beat the crap out of Thomas.
If Bush nominates Thomas it might be because Thomas is a lot younger than Scalia.
Also see:
COUNTY OF RIVERSIDE v. McLAUGHLIN, 500 U.S. 44 (1991)
I don't remember this case very well but it had sth to do with failing to provide "prompt" judicial determinations of probable cause to persons who were arrested without a warrant. Anyway O'Connor wrote the majority opinion which was joined by Rehnquist, White, Kennedy and Souter. Marshall, Blackmun, Stevens and Scalia dissented. Scalia beautifully wrote:
"The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, "when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was [500 U.S. 44, 60] done. "I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not). Thinking that neither the one course nor the other is correct, nor the two combined, I dissent from today's decision, which eliminates a very old right indeed."
Thanks for the post. Interesting comments.
You're right, however in that case the majority was formed by Brennan, Marshall, Blackmun, Scalia and Kennedy, while Rehnquist, White, Stevens and O'Connor dissented, so it wasn't exactly along liberal/conservative lines, as Stevens wrote a very sharp dissent.
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