The American Spectator

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,

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?