Gonzales v. Raich

Having finally read it, I definitely think that the Supreme Court was correct to uphold the application of the Controlled Substances Act to medical marijuana in Gonzales v. Raich, which was announced Monday. While these laws are certainly deplorable as public policy, I think that they are within Congress’ authority. As Stevens points out, as long as Wickard v. Fillburn controls the case is actually pretty easy.

The other salient aspect of this case to me is that it reinforces my contrarian belief that Thomas’ jurisprudence is more principled, consistent, and interesting than Scalia’s. Scalia’s concurrence continues a federalist jurisprudence that is hopelessly muddled; indeed, in this set of cases Scalia and O’Connor have basically reversed their usual roles. O’Connor is pretty much right–and must have enjoyed pointing out–that “the result…in this case [is] irreconcilable with our decisions in Lopez, and United States v. Morrison.” I’m not sure about Lopez–that law was so silly and symbolic, such a clear overlap with state police powers for no good reason–that perhaps it can be distinguished. But Morrison, I think, is irreconcilable with Raich. The civil suit provision of the Violence Against Women Act was part of a broader regulatory scheme, and Congress produced reams of evidence that violence against women had large economic effects; certainly, much more than growing ganja at home for medicinal purposes. The only way to explain the switch is that Scalia thinks that drug laws are a better use of Congress’ authority than protecting women against sexual assault and domestic violence when states are failing to do so. Thomas, to his credit, is willing to apply his federalist principles consistently. (And I’ll post about it later in the week, but Scalia’s joining the sovereign immunity cases is an even greater embarrassment for him, given his textualist variant of originalism.)

To the extent that doctrine matters, though, this is a major coup for opponents of the new “federalist” (cough, ahem) jurisprudence. Basically, if Congress just writes laws of a proper scope it will be very difficult to find them unconstitutional. It remains unclear what the effects of the shift that started with Lopez will be, but as of now there aren’t the votes to apply it very expansively.