Scalia sucks (Gonzales v. Raich)

Today’s Supreme Court decision of Gonzales v. Raich (link to PDF of decision) holds that the state of California isn’t allowed to make intrastate medical use of marijuana legal. The AP article says “the decision is a stinging defeat for marijuana advocates.” As usual, the popular press gets it wrong. Much worse, this decision is a stinging defeat for federalism.

I am extremely disappointed with Justice Scalia for voting with the majority. Thomas is often considered his clone, but we see here that Thomas is the better of the two Justices. And kudos to Rehnquist and O’Connor, whom we normally think of as more anti-federalism than Scalia, for also siding with the principles of federalism.

David Bernstein does a great job expressing how I feel about Scalia:

Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list."

UPDATE

Marty Lederman says:

[W]hat's really notable about today's decision is that it was not 9-0, but was instead 6-3.

I say what’s even more notable is that it’s 6-3 and not 5-4. That one extra vote is Justice Scalia. Until today I thought that Scalia was the primary force on the Supreme Court in favor of the doctrine of original intent. And the original intent of the Constitution was that Congress’s power be limited to those specific powers enumerated in Article II Section 8. And this intent was further clarified in the Tenth Amendment. This is the concept of federalism, that the states retain their own authority except where such authority is explicitly granted to the federal government.

When the man we consider the Court’s chief supporter of federalism sides with the evil doctrine of Wickard v. Filburn (1942), we may as well kiss the notion goodbye that things are ever going to change. This is why the post is entitled “Scalia sucks.”

UPDATE 2

Jeff at Caerdroia asks:

Why did it require a Constitutional amendment to ban alcohol, but not drugs?

Obviously the answer is that in the early 1900s it was commonly understood that the Constitution didn’t grant Congress a general “police power” authority. But since 1942 it has been commonly understood that Congress has nearly unlimited power to do anything it wants.

An even better question to ask is “why doesn’t anyone ever ask this question?” What percentage of Americans who didn’t go to law school are even aware that there was a radical change in Constitutional interpretation during the time of FDR’s presidency? Why do people think the Constitution is the greatest document ever when they have no clue what’s in there? The very fact that important parts of the Constitution are ignored would seem to indicate the opposite viewpoint, that the Constitution was actually a really crappy document but luckily we live in a modern society where judges are smart enough to ignore it.

Comments

[Michael H.]

Hi Half Sigma
I agree. This is a shocking decision. I'm not a proponent of marijuana but that isn't the point here at all. This issue is whether Federal law trumps state law. The Constitution says "No" but the Supreme Court just said "Yes".

I can't understand how the justices could say with a straight face that the commerce clause would be relevant here when you're talking about a commodity that is definitely illegal to transport from state to state? SCOTUS will use the commerce clause to strike some meaningless marijuana law that no impact on the illegal market for marijuana but they won't use the same clause to ban those special deals that local governments give to preferred industries (like the local ball club). Go figure.

[Scott S]

I am planning on having a funeral party for the 10th amendment this weekend. So open a beer (or pack a bowl) Saturday night and mourn with me. It's been dead awhile, I know, but sometimes you need to remember the good times while our rulers spit on the corpse.

[Scott S]

I just caught this:

"The very fact that important parts of the Constitution are ignored would seem to indicate the opposite viewpoint, that the Constitution was actually a really crappy document but luckily we live in a modern society where judges are smart enough to ignore it."

Please please please tell me you are kidding.

[Half Sigma]

Scott, I thought it was clear from the context that it was a rhetorical argument and not my actual opinion.