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A Comparison Between Scalia and Thomas: Part II — Gonzales v. Raich (2005)

Part II of II: Gonzales v. Raich (2005)

One of the sociopolitical issues where public opinion in the United States has significantly changed in the last couple of decades is marijuana legalization, as more and more Americans have realized the pointlessness of statutes that criminalize consumption of marijuana for personal reasons. Proposition 215, passed in 1996 in California, was the first example of a state legalizing marijuana for medical purposes in direct opposition to federal statutes that criminalized its usage.  

Angel Raich, a resident of California, used homegrown medical marijuana, which was destroyed by officers from Butte County Sheriff’s Department, citing that marijuana was an illegal Schedule I drug under the Controlled Substances Act. Raich maintained that she used marijuana to relieve pain and muscle spasms and thus needed it for health purposes, and she sued that the enforcement of federal law would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth Amendment, the Tenth Amendment, and the doctrine of medical necessity. The argument given on behalf of Attorney General Alberto Gonzales was that federal law preempts local California law under the Supremacy Clause.

Not only did the states of California, Maryland, Washington, known for progressive politics, file briefs supporting Angel Raich, but also the states of Alabama, Louisiana and Missouri filed briefs supporting Angel Raich. These more conservative states themselves typically hold positions against legalization of drugs, but they interpreted the case as more relevant to states’ rights against federal outreach. Before the case reached the Supreme Court, the Ninth Circuit Court of Appeals granted a preliminary injunction to prevent the federal government from overriding state law.

Before we cover the judgment, we need to mention two cases, both of which had Justice Rehnquist authoring the majority opinion that limited federal power in regulation of states : United States v. Lopez (1995) and United States v. Morrison (2000). The Rehnquist court sharply narrowed the extent to which the federal government could override state law in matters under the Commerce Clause. The former repealed portions of the Gun-Free School Zones Act of 1990 while the latter repealed portions of the Violence Against Women Act of 1994. Indeed, the biggest legacy of Justice Rehnquist has been his expansion of federalist applications and principles to the law – his most prominent actions driving his acceptance as a conservative jurist.

The majority opinion was authored by Justice Stevens, joined by Justices Kennedy, Ginsburg, Souter, and Breyer. They pointed out that the case did not challenge the ability of the federal government to regulate (and ban) marijuana for non-medical uses and only considers regulation for medical uses. The judges propose that banning growing of marijuana for medical use was a permissible way of preventing marijuana being used for other, possibly commercial uses. These commercial uses could involve inter-state commerce, thus allowing federal law to intervene. Justice Scalia authored a concurring opinion where he explained why he voted to allow federal regulation in this case, unlike the cases United States v. Lopez and United States v. Morrison, in both of which he agreed with Chief Justice Rehnquist. He emphasized that the Necessary and Proper Clause meant that the federal government could interfere in noneconomic activities if interstate commerce could be affected without it.

Justice O’Connor wrote a dissent that was joined by Chief Justice Rehnquist and partially by Justice Thomas, who also wrote his own dissent. Justice O’Connor argued that judicial regulation of federal law that appeals to the Commerce Clause is necessary to ‘protect historic spheres of state sovereignty from excessive federal encroachment’. She moreover admitted that she personally would have opposed Proposition 215 if she was a citizen of California, but she believes it necessary to respect the majority will of citizens of California.

Surprisingly, looking back almost two decades later, it is Justice Thomas’ dissent that appears sharpest, pointing out the absurdities of the consequences of the verdict. Emphasizing that the people involved in the case never intended to cross state lines for commercial purposes and merely grew their own marijuana for personal consumption, Justice Thomas pointed out that if the Federal Government could regulate this, ‘virtually anything’ could be regulated similarly. He also asserts that historically, the early history of the United States also did not show any evidence for the Federal government directly regulating goods that have no commercial usage.

It is to be noted that Justice Thomas was on the side of federalism in all three cases – United States v. Lopez, United States v. Morrison and Gonzales v. Raich. It seems that Justice Scalia is the hypocrite here – one who supported federalism and states’ rights when the state’s policy favored the traditionally conservative position, but supported federal outreach when the federal policy favored the traditionally conservative position. Being typically sympathetic towards federalism was one of the biggest hallmarks of Justice Rehnquist, but the point of this essay is that Justice Thomas was much more consistent with his philosophy than Justice Scalia.

Justices Scalia and Kennedy are the two justices whose stances flipped from the earlier two Rehnquist-authored opinions (which they joined) to this one. Justices Souter, Ginsburg, and Breyer voted in favor of federal regulation in all three cases, most probably because they thought that allowing federal regulation of state law is necessary to ensure that the law of some states do not drastically differ from federal standards – historically, states’ rights have been used to argue for Jim Crow policies. As a result, in the case of Gonzales v. Raich, liberal justices Souter, Ginsburg, and Breyer, supported federal criminalization of marijuana even if it went against personal conviction, to maintain uniform application of the legal framework.

Justices O’Connor, Rehnquist, and Thomas were consistent in arguing for limiting federal outreach in regulation – we shall never know why exactly Justices Scalia and Kennedy drew the boundary at legalization of marijuana to be affecting interstate commerce but not legalization of guns around schools (the issue in United States v. Lopez). The broader issue, of course, remains that using the Commerce Clause to argue for or against a certain position, can itself involve tenuous stretches of logic, as we saw.

Angikar Ghosal is from Calcutta, India, studying Mathematics and Computer Science

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