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Monday, June 06, 2005

Raich- a Mild Surprise and a Lesson

The much anticipated Medical Marijuana case Gonzalez v. Raich came down today. See Majority Opinion here, Scalia's Burkean Concurrence is here, Principal Dissent (SOC, WHR, CT) here, and CT's Originalist Dissent here. It is no surprise that SCOTUS reversed the 9th Cir.'s decisions striking down as unconstitutional the portion of CSA that regulated wholly intrastate non-commercial medical use of marijuana. However, it was mildly surprising to see that Justice Scalia voted with the Court to deal a major blow to Federalism. This is only mildly surprising because Scalia is as Burkean as anyone. His concurrence, at first glance, appears to be an attempt to remain originalist, Burkean and socially conservative.

However, despite his Burkean nature, I still feel like something else, possibly the potential for elevation motivated Scalia's vote. It is possible that Scalia knows that the public and uninformed Senators would see his vote either as approving or condemning the medical use of cannabis. The public (let alone most of the legal academy) doesn't understand Originalism, Judicial Restraint and Stare Decisis. If he would have voted to uphold the 9th Cir. social conservatives with little legal background would have been livid. I myself, before coming to law school and actually learning Constitutional Law, would have been confused if Scalia upheld the California statute. As Professor Bernstein points out, Scalia likely saw that it was more politically expedient to strike down the Statute than uphold it. Hopefully, Scalia's vote will ensure him the Chief's chair enabling him to garner more Pro-Federalist decisions.

Now, I am in no way defending Scalia's decision. A big part of me wishes he would have voted the other way. However, Scalia's Burkean nature overcame his Originalist leanings. I am beginning to believe that Thomas is the only true originalist left on the court. SOC's dissent as Professor Bernstein pointed out, is policy oriented with little reference to original intent/meaning. Scalia's position, while possible to reconcile, calls into question his originalist jurisprudence. Thomas on the other hand looks to the original intent of both the Commerce Clause and the Necessary and Proper Clause.

In the midst of all of this confusion there is a lesson. If you have a goal to overturn some silly unsound decision, you don't go after it with a case that on its face doesn't appeal to the justices. Judicial conservatives who want to overturn Wickard and its progeny need to find controversies that appeal to both the Federalist and social conservative leanings of the Federalist Five. RBG was very successful at doing this while she was head of the ACLU. (E.g. The Thirsty Boys Case). What we need in order to overturn Wickard or to further narrow Commerce Clause doctrine is socially conservative appealing cases.

UPDATE: For those of you interested in Raich- there is going to be a mega-blog discussing Raich. It will feature most of the Volokh Conspiracy, Larry Solum and other Constitutional Law Scholars over at SCOTUS Blog here.

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