Exposing Hypocrites on The Supreme Court

Dahlia Lithwick has an entertaining piece in Slatepointing out the dilemma faced by the so-called states rights judges in the medical marijuana case argued today.

A little background. Until the Roosevelt administration, the Supreme Court took a very narrow view of Congressional power provided by the Commerce Clause. The Supreme Court initially blocked New Deal legislation finding Congress abused its Commerce Clause powers. Roosevelt in retaliation, sought to pack the court, which failed....but got the courts attention and they started expanding Congresses powers which seemed to expand exponentially until 1995. This expansion of the C Clause powers has made the states rights crowd CRAZY! Has this latter group gained power the court has started to reign in Congress C Clause powers.

Well with the medical marijuana case, we will find out who are actually principaled and who are hypocrites.

....Acting Solicitor General Paul Clement represents Ashcroft in this case, and he is arguing that states' rights are a good thing, unless the state in question is one of the 10, 11, or 12 states (depending on ow you count them) that have legalized medicinal marijuana. His opening comments are quickly interrupted by Justice Sandra Day O'Connor, asking whether the Supreme Court's recent federalism rulings in United States v. Lopez (1995) and United States v. Morrison (2000) cast doubt on his case.

Before Lopez and Morrison, the Supreme Court mostly kicked back and enjoyed a lengthy period of deference to Congress' view of the limits on its so-called "commerce clause" powers.....starting in the late 1930s and into the '40s—interstate commerce began to include just about anything Congress wished to regulate, like employment and wages, right on up to just about any conduct save for interstate burping. The Rehnquist court put a stop to all that madness with Lopez and Morrison—striking down, respectively, a federal gun law and a law creating a federal cause of action for female victims of violence—as straying far beyond the commerce-clause power. Suddenly, "interstate" and "commerce" were words with meaning again.

Clement tells O'Connor that those federalism cases can be distinguished from the marijuana one, but O'Connor shoots back with a question about Wickard v. Filburn, the classic commerce-clause case from 1942. Wickard involved a farmer who owned a family dairy farm and exceeded the annual wheat quota then allowed by the federal government. The farmer argued that his wheat was for his own consumption and that Congress had exceeded its commerce-clause powers in setting quotas. The Supreme Court disagreed. O'Connor points out that the wheat grown in Wickard entered a national market. Whereas pot grown on a windowsill by dying women or their caregivers does not. Or, to quote Ruth Bader Ginsburg: "Nobody's buying anything. Nobody's selling anything."

The article is good and entertaining. Go read the whole thing.

Lithwick concludes:

...should the court's staunchest conservatives get away with being for states' rights only when the state in question isn't California? No. Will they? Oh, you can bet your bong on it.