Raich Was an Easy Case

First, thanks to this site’s hosts for inviting me to participate.

I’m struck by this quote from David Bernstein’s post over at Volokh:

I predicted the outcome of this case (and think it’s remarkable and a testament to his talents that co-blogger Randy got Rehnquist and O’Connor to vote in favor of his clients) on the theory that wavering Justices such as Kennedy, who voted with the majority, would be affected by political trends apparent in the United States. When Kennedy voted with the majority in Lopez, congressional Republicans were making serious (albeit hamhanded) efforts to limit the federal government, and their rhetoric was even more strongly devolutionary. A decade later, the Republican Congress is vying with the Democratic Congresses of the 1930’s and 1960’s as the biggest supporter of increased federal power in American history. Scalia’s vote was also likely affected by the sense that the Court should not expend political capital, especially with new Republican nominees soon to be voted on, on trying to limit federal power without any support from the political branches.

Although there’s a lot I agree with or find interesting in David’s post, I have to object to the implicit suggestion that Justices Kennedy and Scalia are just following broader political trends, which David suggests were very devolutionary in 1995 and much more nationalistic now. Without denying that courts (including the Supreme Court) are strongly influenced by broader trends in the political culture, I don’t think the explanation fits here. Rhetoric aside, I don’t think there was *ever* a majority — not in 1995, and not now; not in the Court, and not in Congress — for a massive shift in the federal-state balance that existed in the period immediately prior to Lopez. There are too many issues for which social and business conservatives like federal power, and libertarians like Randy and David are, and always have been, a relatively small faction within the conservative movement (though a faction whose ideas — which are often really interesting, provocative, and persuasive — have been cherry picked by other conservatives).

Though lots of people, on both left and right, read Lopez at the time to herald a massive shift in the federal-state balance, another reading was always plausible (and I always thought more plausible): The Court majority just wanted to assert that there was *some* limit on federal power. And it was Justice Kennedy who told us, way back in 1995, in his concurrences in Lopez and Term Limits, that he certainly didn’t read Lopez as portending a massive shift. So I actually think Justice Kennedy’s been quite consistent.

As for Justice Scalia, I’m sure this is the first time he’s been accused of having his vote affected by the sense that the Court should not expend political capital! More seriously, why not just take at face value what he says in his concurrence? This is really an uncommonly easy Commerce Clause case (which does, indeed, make it a testament to Randy’s talents that he was able to persuade the Chief Justice, Justice O’Connor, and Justice Thomas to come over to his side). Marijuana’s a good in which there’s extensive interstate commerce. It’s sold in consensual transactions, so it’s hard to enforce the prohibition on the commerce without prohibiting possession. It doesn’t take a rocket scientist to see that if people can possess marijuana that hasn’t crossed state lines if it’s for medicinal purposes, that makes the prohibition yet harder to enforce. That may be an acceptable cost — a majority of Californians thought so, and I would probably make the same judgment as a matter of policy — but it certainly undermines Congress’s preferred regulation of commerce.

Mark says
that though it’s possible, presumably through intense theological efforts, to “make doctrinal sense” of the Lopez line of Commerce Clause cases, the “more parsimonious account” is “that there are some statutes five or more justices (actually, one justice — see the final paragrpah of this post) think are more or less good ideas, and others that five or more justices think are more or less bad ideas; and that those justices will go to any (purportedly doctrinal) port in a storm to reach the results they think sensible.” I dunno. I’m always open to an explanation like this, but again I just don’t think it fits here. In my reading, which I think easily fits the cases as well as what I can determine of the views of the swing justice, Lopez and Morrison are about the need to have *some* limit on federal power. They stand for the proposition that if you can’t justify this exercise of federal power in a way that explains why some exercises of federal power could not be justified, Congress has exceeded its commerce power. The Lopez and Morrison majority seemed particularly concerned in this regard with regulation of activity that is far removed from commerce or economic activity. In each of the cases where the Court has upheld a statute under the commerce power since Lopez — Condon, Pierce County, Alafabco, Raich — the regulated activity has an obvious connection to commerce or economic activity. I think the doctrine leads to relatively artificial line-drawing, but I think it also reflects what Mark refers to as “an attitude towards federalism” — though here it’s not so much a pro-state attitude as a notion that both the states and the federal government have an independent place in the federal system, and that means there have to be some things the feds just can’t regulate. That’s how I’ve always read Justice Kennedy’s Lopez and Term Limits concurrences together, and I think that attitude makes these decisions more than just a collection of results.