What Has Scalia Been Smoking?

The conservative justices of the United States Supreme Court are easy to hate; but with the obvious exception of Justice Clarence Thomas, about whom the best one can say is that he’s at least smart enough to keep his ignorant mouth tightly shut during oral argument, they are uniformly brilliant. They are also usually principled (if morally misguided) and therefore quite predictable.

Today’s ruling by the Court (Gonzales v. Raich, No. 03-1454), upholding the ability of federal law enforcement authorities to arrest state sanctioned users of medical marijuana, was therefore a fascinating and disappointing surprise.

The case presented a classic issue of federalism and states’ rights: what is the scope of federal regulatory authority where state and federal laws are in conflict? You will recall that our Constitution reserves for the states all powers not specifically given to the federal government. On the other hand, the Constitution grants the federal government authority to regulate interstate commerce; and when it exercises that authority, its rules preempt state law.

What constitutes an “effect on interstate commerce” and how broadly should the Constitution’s Commerce Clause be applied? Reasonable minds can differ on this issue. On the Supreme Court, they differ in an 5-4 pattern that is so predictable one almost wonders why the litigants go through the hassle of briefing and arguing the cases. The conservatives (Justices Rehnquist, O’Connor, Scalia, Kennedy, and Thomas), who mistrust the feds and “big government,” invariably seek to limit the reach of the Commerce Clause, thereby ceding power to the states. The liberals (Justices Stevens, Breyer, Souter, and Ginsberg), who mistrust the provincialism and selfishness of redneck states, are generally willing to expand the regulatory powers of the federal government.

But today the inevitable became the unpredictable. Two conservative stalwarts, Justices Scalia and Kennedy, sided with the liberals. The result: federal DEA agents were justified in breaking into the homes of two women, one suffering from wasting syndrome the other a cancer victim, to destroy their pot plants, despite the horticulture and toking being entirely permissible under California law. As one of them was quoted in the New York Times, “I don’t have a choice but to continue [smoking dope] because if I stopped I would die.”

Justice O’Connor, who often takes the Madisonian line for the majority in these 5-4 states’ rights cases, instead wrote for the 3 justice minority and seemed shocked and outraged by the defections of her conservative colleagues. After all, even Justice Scalia conceded that this case involved no interstate commerce whatsoever. She augured that the Court’s ruling “threatens to sweep all of productive human activity into federal regulatory reach.”

Why did Justices Scalia and Kennedy abandon their states’ rights mantras in this case? To prove, once again, that there is no principle of governance so sacred to a conservative that it cannot be sacrificed to an outcome which supports the kind of prudish, narrow-minded, mean-spirited, medieval social policies that are their stock-in-trade.


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