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The Ninth Circuit’S Revenge
In Gonzales v. Raich, the circuit court won big.


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The Ninth Circuit finally got its revenge on the Supreme Court justices who seemed to delight in reversing it. In Gonzales v. Raich, it gave the conservatives a choice: Uphold the Ninth Circuit’s ruling favoring individuals engaged in the wholly intrastate non-economic activity of growing and consuming cannabis for medical purposes as recommended by a doctor and permitted by state law, or retreat from the landmark Commerce Clause decisions of U.S. v. Lopez (1995) and U.S. v. Morrison (2000). Either way the Ninth Circuit wins. But with Justices Kennedy and Scalia on the liberal side of the Court, the Ninth Circuit won big. So did Judge Stephen Reinhardt, who first implemented this strategy in the child-porn case of U.S. v. McCoy.

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Of course, my clients and I were betting the other way. Either all five federalist justices would hold to their principles, or a few of the more liberal justices might decide to follow the “precedents” of Lopez and Morrison and make an exception to their principled stance in favor of federal power out of concern for the tens of thousands of suffering patents who acted through the democratic processes of their states to enact compassionate use acts. It was not to be.

I credit the four Lopez and Morrison dissenters with putting their vision of the Constitution above precedent. I agree that unconstitutional precedent should not be followed (see my take on precedent here). I credit even more the three dissenters.

Justice O’Connor gets lots of grief from conservatives, but here she clearly put her longstanding judicial commitment to federalism above her expressed distaste for medical-cannabis laws. Her dissenting opinion adopted our analysis in its entirety. She clearly got it–as did the two justices who joined her opinion–which means the entire Court got it. In the end, the six in the majority completely understood our theory of the case, and simply disagreed.

I have sometimes heard even some of Chief Justice Rehnquist’s greatest supporters question his commitment to principle, and few thought he would rule for us. Yet he did, and at a cost. Had he joined the majority, he could have written the opinion himself to limit the damage to his New Federalist legacy. Yet he joined the dissent anyway.

It comes as no surprise that I admire Justice Thomas’s opinion. His opinion now establishes that there are not two principled originalist justices on the Court today, but one. To me, this means that when it comes to enumerated federal powers, there is only one justice who is clearly willing to put the mandate of the Constitution above his or her own views of either policy or what would make a better constitution than the one enacted.

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.

Which brings me to the two justices in the federalist majority of Lopez and Morrison who have now joined the four dissenters in those two cases: Justices Kennedy and Scalia. Many reporters have asked me whether I can explain their votes. Veteran Supreme Court reporter Lyle Dennison has suggested that Justice Kennedy has a zero-toelrance approach to drugs. Justice Kennedy’s deportment during oral argument supports that theory, but we will never know because he joined the majority opinion without comment. In Lopez and Morrison, Justice Kennedy offered concurring opinions that rested his decisions on a respect for the traditional functions of states, rather than on original meaning. Much of our brief was devoted to this issue, which, if anything, was stronger here–where states have affirmatively acted to protect the health and safety of their citizens–than it was in either Lopez or Morrison. How he reconciles his expressed support for the traditional law-enforcement role of the states with his joining what can only be described as the opposite view expressed by Justice Stevens only he can say. But he chose not to.

What about Justice Scalia? He did not join the majority opinion, resting his decision on the Necessary and Proper Clause, which he had previously described in Printz v. U.S. as “the last, best hope of those who defend ultra vires congressional action.” In his concurring opinion in Raich, Justice Scalia appears to put his commitment to majoritarianism over his commitment to originalism. Yet this decision does run counter to his oft-expressed insistence that the people should act to protect their un-enumerated rights in state political processes rather than in federal court. Here this is exactly what the citizens of California and ten other states have done, but Justice Scalia’s new stance on the Necessary and Proper Clause leaves citizens little, if any, room to protect their liberty from federal encroachment in the future. It has always seemed significant that he never joined Justice Thomas’s originalist concurrences in Lopez and Morrison. Nor does he explain why Justice Thomas’s originalist dissent in Raich is historically inaccurate, which would be incumbent on him as an “originalist justice” to do. Instead, Justice Scalia now joins in expanding the reach of the Commerce Clause power beyond even that which the Court had endorsed in Wickard v.
Filburn. In oral argument he admitted, “I always used to laugh at Wickard.” Now it’s Judge Stephen Reinhardt and the Ninth Circuit’s turn to laugh.

Gonzales v. Raich has had the salutary effect of showing that federalism is not just for conservatives. Many liberals are distressed about Justice Stevens’s opinion. With a Republican Congress they have come to see the virtue of state experimentation. The case also succeeded in raising the national visibility of the medical-cannabis cause. Maybe now Congress will act where it has refused to act in the past.

But Gonzales v. Raich has placed the future of the New Federalism in doubt, which makes future appointments to the Supreme Court all the more important. Will the president name someone who, like Justice Thomas, is truly committed to federalism? Or will his nominee be a fair-weather federalist, as Justice Scalia has turned out to be when the chips were down?

Randy Barnett is the Austin B. Fletcher Professor of Law at Boston University and author of Restoring the Lost Constitution: The Presumption of Liberty. He argued Gonzales v. Raich in the Supreme Court last November.



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