"I used to laugh at Wickard"
I note something overlooked by all coverage of the case I have seen. Justices Rehnquist and Thomas both declined to join the paragraph in Justice O'Connor's dissent in which she expresses her disagreement with the state medical-cannabis laws. This does not necessarily mean that these two justices agree with the Compassionate Use Act, but it does mean that they explicitly refused to go on record against it. Contrast this with Justice Thomas's condemnation of the Texas anti-sodomy law in his dissent in Lawrence v Texas.Then he turns to Kennedy and Scalia. What made them switch sides? He cites Veteran Supreme Court reporter Lyle Dennison's suggestion that Kennedy has a zero-tolerance approach to drugs, and says, "Justice Kennedy's deportment during oral argument supports that theory, but we will never know". As for Scalia, he seems at a loss to explain his decision, which seems so out of character. "It has always seemed significant that he never joined Justice Thomas's originalist concurrences in Lopez and Morrison...In oral argument he admitted, 'I always used to laugh at Wickard'."
I've got an idea about that. It wouldn't surprise me if Scalia's got his eye on the Chief's job. In the present political climate, whoever is nominated will face concerted opposition from the Democrats, who will stop at nothing to embarrass and block him. To counter that, the President needs the full support of the right. He says he wants an originalist, and I'm sure he does, but there's no way he's going to nominate someone who voted for relenting in the War On Some Drugs. That trumps constitutional principle. He'll take a 90% originalist over a more principled candidate whom the rabid puritan wing of the GOP can accuse of being 'pro-drug'; it would be much worse than Douglas Ginsburg. And with Kennedy already voting on the wrong side, it's not as if Scalia was the deciding vote. So perhaps practicality overpowered principle, and he decided to go with the flow.
But rather than join Stevens's majority opinion, he tried to at least somewhat mitigate the damage with his own concurring opinion, which clearly establishes that the medical marijuana does not substantially affect interstate commerce, and Congress would not be able to ban it under the Commerce Clause alone, but rather it needs the help of the Necessary and Proper clause. Where Stevens expanded the definition of 'commerce' so far that it has actually snapped (as Thomas pointed out, Stevens's definition would cover "quilting bees, clothes drives, and potluck suppers"), Scalia limits it, and instead makes an easily-rebuttable argument that amounts to saying it's not utterly and completely irrational to suggest that banning interstate commerce in pot (which is what the Commerce Clause allows Congress to do) would be substantially more difficult (though not impossible) without banning private medical use as well, so the ban is Necessary and Proper. There will be other occasions to roll back Wickard and its evil progeny, when there's another federalist or two on the bench, or at least such a hope might be behind Scalia's thinking here.
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posted by Milhouse at 6:11 PM