Is Thomas correct that Stevens, Kennedy, Souter, Ginsburg, and Breyer can not reconcile ruling for Oregon here after setting the precedent of federal power in Raich? Why or why not?
He is. Then again Thomas is in the same boat, which is why finding for California in Gonzales v. Raich
and finding for the government in Gonzales v. Oregon
makes him such a grandstanding jerk. The government’s stated reasons for blocking medical marijuana and assisted suicide are based on the Controlled Substance Act
, a “30 year-old law aimed at hippie stoners.” (Link
This is what Thomas had to say in his dissenting opinion about Raich
Finally, the majority's view—that because some of the CSA's applications are constitutional, they must all be constitutional—undermines its reliance on the substantial effects test. The intrastate conduct swept within a general regulatory scheme may or may not have a substantial effect on the relevant interstate market. "[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce." Id., at 600 (Thomas, J., concurring). The breadth of legislation that Congress enacts says nothing about whether the intrastate activity substantially affects interstate commerce, let alone whether it is necessary to the scheme. Because medical marijuana users in California and elsewhere are not placing substantial amounts of cannabis into the stream of interstate commerce, Congress may not regulate them under the substantial effects test, no matter how broadly it drafts the CSA.
Thomas offers a limited interpretation of the CSA and calls on states rights, alleging that stopping terminally ill Californians from smoking pot on the basis of the commerce clause amounts to usurping the state’s police powers. In Oregon
the substance in question doesn’t alleviate pain, it ends it. Thomas can’t quite bring himself to the same conclusion. Or perhaps he does, but instead of agreeing with the majority he dissents in what amounts to a political statement by sticking his thumb in the majority’s eye.
Scalia doesn’t look much better even though he sided (incorrectly, IMO) with the majority in Raich
. In abortion cases he derides the majority for relying on their individual “moral intuition,” making “value judgment[s]” and creatively stretching the scope and meaning of the law. However, in Oregon
[Scalia’s] Principle 2 is to stick to the text of what you're evaluating—the Constitution, laws, regulations—and avoid reading new meanings into it. In Casey and Stenberg, Scalia said the Constitution can't protect a right to abortions, since it doesn't mention them. He criticized Roe for asserting "a value found nowhere in the constitutional text." He insisted that "the text of the Constitution, and our traditions, say what they say and there is no fiddling with them." He chided his colleagues for suggesting that "the Constitution has an evolving meaning." Wednesday's ruling in Ayotte, which Scalia joins, reaffirms, "The touchstone for any decision about remedy is legislative intent."
Scalia's six colleagues follow this principle scrupulously in the assisted-suicide case. Since the CSA's text applies to drug addiction and recreational abuse, and since Congress "relied not on Executive ingenuity, but rather on specific legislation" when it wanted to broaden the law's coverage, the justices conclude that the CSA says what it says and shouldn't be fiddled with. Scalia, however, discards legislative intent and discovers the law's evolving meaning. "Even assuming, however, that the principal concern of the CSA is the curtailment of 'addiction and recreational abuse,' there is no reason to think that this is its exclusive concern," he writes. "We have repeatedly observed that Congress often passes statutes that sweep more broadly than the main problem they were designed to address."
Principle 3 is to defer to the states. In Stenberg, Scalia urged his colleagues to "return [abortion] to the people—where the Constitution, by its silence on the subject, left it—and let them decide, State by State, whether this practice should be allowed." In Casey, he warned that the court's job wasn't "determining some kind of social consensus," and he explained the arrogance and folly of nationalizing moral issues: […]
It's a pretty compelling argument. Not compelling enough to sustain the loyalty of its author, however. In the assisted-suicide case, he argues exactly the opposite: "The fact that many in Oregon believe that the boundaries of 'legitimate medicine' should be extended to include assisted suicide does not change the fact that the overwhelming weight of authority (including the 47 States that condemn physician-assisted suicide) confirms that they have not yet been so extended."
There you have it. In reality Scalia agrees with Kennedy’s math in Roper v. Simmons
, the case that outlawed juvenile executions
because, in part, few states allowed it.
Scalia doesn’t like textualist interpretations when the conclusion gnaws at his conscience.