Supreme Buzzkill, or the end to Nice California Dreams

So the Supreme Court reversed the Ninth Circuit's decision in Gonzales v Raich, 6-3. "So what?" you're asking, "the Supreme Court reverses the 9th all the time." This one has lit up constitutional law commentators all over, however, and has been blogged to death, not without reason. It's not because the decision was so unexpected (although it was to some, mysteriously) or that it produces any substantial change in current law (although it might have some impact on the development of Commerce Clause doctrine in the long run.) What's interesting to many people is the split it produced within the States Rights Party on the Court: Kennedy and Scalia voted with the majority, while O'Connor, Rehnquist and Thomas dissented.

I wrote about this case before, back when it had just been argued and was still called Ashcroft v Raich. The substitution of new AG Alberto Gonzalez for Ashcroft makes me wonder again whether DoJ staff make fun of Gonzalez behind his back, running their fingers through their hair and cooing "Oooh, Alberto!" Because that's what I would do. Anyway, I notice that I didn't offer any explicit predictions in the case, but suggested that Scalia would vote to overrule the circuit and that Thomas would side with the appellees, both of which turned out to be accurate. I guess you could say I was expecting the Court to reverse the 9th, which I was, but I didn't really make that clear.

Shortly after the decision was announced, when the only info available was that the decision was against Raich, et al and that it was 6-3 with Stevens writing for the Court, I spotted an email bulletin from a prominent attorney assuming that the dissenters were the Chief, Scalia and Thomas. I doubted Scalia was the third and wasn't absolutely sure about Rehnquist, but figured the third dissenting vote was probably from O'Connor, whose states rights bona fides strike me as stronger than Nino's. Before patting myself on the back too much, though, I was surprised it was 6-3. I was more expecting 8-1, with Thomas rolling solo. Scalia, it seemed to me, made a good argument that this case just wasn't distinguishable from Wickard v. Filburn and that only Thomas (among the Lopez Five) would not see that as a problem. It was also possible that those justices would not see any way to retain the federalism ground gained in Lopez without affirming the appeals court, a view given support by O'Connor and Thomas' dissents. The four Lopez dissenters were easy to predict, so I figured the decision would either be a 4-5 repeat of Lopez and Morrison or 8-1 as everybody but Thomas either abandoned Lopez or tried to distinguish this case somehow so the War on Drugs could continue unabated.

Consider me surprised, but not really disappointed. The split between Kennedy and (especially) Scalia and the rest of the Lopez Five more than makes up for not getting the votes exactly right. Stevens notes the "striking" similarities between Raich and Wickard and goes pretty far to making it sound like this case was easy, despite the "troubling" facts. Stevens distinguishes Raich from Lopez and Morrison on the basis of the "economic" nature of marijuana cultivation and consumption, in contrast to the activities (gun possession and violence against women) at issue in the previous two cases (which goes to show you how much the justices know about criminal enterprises.) He leaves relatively unelaborated, however, just what kind of activities might qualify as "affecting" commerce and how "substantial" that effect has to be.

Scalia's concurrence is especially interesting, since it's not as zesty (or testy, depending on your taste) as he can be when responding to critiques. He grounds the regulation of noneconomic intrastate activity in the Necessary and Proper Clause when in pursuit of a "comprehensive scheme of regulation," that being to "extinguish the interstate market in Schedule I controlled substances." Tantalizingly, this suggests that Scalia accepts the appellee's argument (made by Randy Barnett in oral) that medical marijuana use in accordance with CA law is noneconomic activity, a conclusion the majority soundly rejects. Scalia, it seems, wants to preserve the possibility of defining certain activities as "noneconomic"--even those that appear to be clearly "economic" to the untrained eye, like making a commodity and consuming it--at the expense of allowing congressional regulation of that activity if it's necessary to achieve regulation of an interstate market.

I think Scalia hinted at this justification in his comments at oral argument. Lithwick recounted his "eagle feathers" example of commodities whose possession is illegal regardless of their relationship to interstate commerce, presumably because control of their market is part of an important national policy. To Scalia, locking up weed smoking hippies is just too damn important to let federalism doctrine get in the way.

Despite being the other Lopez defector, Kennedy's vote goes unexplained. I think it's pretty clear, though, that Kennedy hates dopers. It should also be said that Kennedy's concurrence in Lopez struck a note of moderation that is becoming typical of AK and is starting to look more and more like a statement that his vote in today's case (whatever that happens to be) does not commit him to any position in any future cases. If Kennedy had written an opinion in Raich, it probably would have read something like this:

Wow, interpreting the Commerce Clause is tricky. I know that there must be limits on Congress' powers flowing from the regulation of interstate commerce, but I'll be darned if I know how to figure out what they are. I just know that allowing wild-eyed druggie freaks to wander the streets shooting old people for their social security checks to support their nasty habits, under a doctor's care, doesn't count.

I join the Court's judgment and opinion that the Controlled Substances Act is constitutional as applied to the appellants. I write separately to make clear that any inference from this opinion and my support of it that I will lend my vote again to the derogation of sovereign state authority or to the sustaining of congressional power in the face of a federalist challenge will really depend on what the case is about.

In my earlier post (and another) I mentioned that certain judges on the 9th Circuit seem to relish opportunities to set Rehnquist Court policies favored by conservatives onto liberal outcomes and watch the justices squirm. Barnett, lead counsel for the losing side in Raich, says the same thing in the National Review.