Asymmetrical Information

I can’t say that I care much about “medical” marijuana but it undermines the Reserved Powers Doctrine when the Interstate Commerce Clause becomes the deflector dish* of the enumerated powers.

The sad thing is that the two justices most likely to retire soon (Rhenquist and O’Connor) were in the dissent on this decision so even if we got two strict constructionists in their place, it would not affect the philosophical makeup of the court as it pertains to interpreting the ICC.

* The all-purpose device from Star Trek which can be altered on a whim to fix any problem.

Well, even if SCOTUS had put some meaning back into the Commerce Clause, Congress has one other deflector dish to fall back on...the General Welfare clause. And wait until SCOTUS rules in favor of New London in Kelo vs. New London. Then the holy trinity of Welfare, Commerce, and Property, all being under the guidance of Congress, will be complete.

Neither party actually supports states rights, just like neither party actually supports fiscal responsibility.

I just love oligarchy.

DISCLAIMER: I have not yet read the decision or full set of opinions.

First of all, this seems to be yet another extension of Wickard, and we can't really expect liberal justices to undermine the keystone of their arch of unlimited power, can we?

Second, careful observers will note that Justice Thomas essentially took Justice Scalia to the woodshed in his dissent. I predict this will be totally overlooked by the usual leftists who claim Thomas follows Scalia around like a puppydog.

Third, it is hugely ironic to read Superlegislator , er, Justice O'Connor:
In a dissent, Justice Sandra Day O'Connor said that states should be allowed to set their own rules.

"The states' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens," said O'Connor, who was joined by other states' rights advocates.

Er, maybe this O'Connor could talk with the Sandra Day O'Connor who wrote the exact opposite in the Lawrence case? Either one supports Federalism consistently, or one doesn't support Federalism at all.

Which brings me back to Justice Thomas, who wrote early in his dissent the whole issue in a nutshell:

"If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers."

Exactly.

Given the penetrating Constitutional insights offered by Stevens and Scalia, one really starts to wonder why it took those pikers so damned long to craft the document in Philly, way back when. It seems the document has the following principals::

1)Interstate Commerce is inclusive of all human behavior, as long as the Court doesn't approve of, or care about the human behavior involved.

2) The United States Government has enumerated powers, except that principal (1) means that all actions possible are enumerated, or, if principal one is not invoked, if the Court thinks a legislative action promotes the general welfare, or is necessary and proper, then, again, all possible actions are enumerated.

Now, tell me, why did it take those yo-yos so many weeks to hammer that out in Philadelphia's summer heat? It seems it could be done over a long lunch, aided by a few pints of ale!

Once again, the Ninth amendment is completely ignored.

"continuing expansion of the commerce clause"

No. I think this is pretty much where the commerce clause already was, given Wickard v Filburn. Your objection is not to the "continued expansion", but rather to the refusal to contract (pun intended) the meaning of the commerce clause.

...Justice Thomas essentially took Justice Scalia to the woodshed in his dissent. I predict this will be totally overlooked by the usual leftists who claim Thomas follows Scalia around like a puppydog.

I was commenting today about Thomas's opinion. He has broken free from his earlier behavior of ... er, following Scalia around. I could only briefly skim his dissenting opinion, but at a glance, it seemed pretty impressive to me.

He has broken free from his earlier behavior of ... er, following Scalia around.

Which is still an untrue assertion, that he ever "followed Scalia around." Has a similar philosophy, yes, but I think a variety of studies have shown that it's hardly a case of following around. They're not even the pair of Justices who agree the most on the current Court, and yet you rarely hear that about other justices.

Of course, people said that Justice Thurgood Marshall followed Justice Brennan around.

"Chief Justice Thomas" is starting to have a ring to it. And I'm one of those wing-nut racist, ULTRA-right-wing extremist Social Conservatives.

If people in Cali and Oregon want medical weed, and vote for it unambigously, no one here in Texas, or any busybodies in Washington, should have the abilty to deny it to them.

It's a pity, but it looks like we're losing Scalia to the Dark Side.

Scalia was tempted to the dark side in Bush v. Gore and it has tainted his soul ever since.

I am tempted to start liking Thomas, but Hamdi is keeping me cautious.

I am impressed with Rehnquist, who usually abandons principle any time it conflicts with being brutally tough on the non-rich or non-white. Maybe cancer has changed his mind about medical maryjane.

It's a pity, but it looks like we're losing Scalia to the Dark Side.

Scalia has long advocated judicial deference to the political branches of government. Arguments can be made that the cannabis issue should be decided at the state level, but it certainly can also be argued that drugs ought to be regulated by the national government, given the national (i.e. interstate) impact of drug policy on the economy.

And there's a perfectly logical process by which saner policies (I'm in agreement our current policies aren't very) vis a vis drugs can be implemented: choosing different political leaders who will change the law.

I'm with Scalia on this one.

it certainly can also be argued that drugs ought to be regulated by the national government, given the national (i.e. interstate) impact of drug policy on the economy.

Sure, you can argue it--but that has nothing to do with whether the Constitution actually gives Congress such a power.

P.B. yo accept Scalia's reasoning is to deny the plain meaning of words, which is more than a little ironic. Thomas is correct; all human activity can now be labeled interstate commerce.

Impact on the national economy is now the test of relevence for the Commerce Clause? I get it. Can't let people in Oregon grow their own herb for personal (medicinal or other) use because it will adversely effect the large scale growers in Northern California.

Which is still an untrue assertion, that he ever "followed Scalia around." Has a similar philosophy, yes, but I think a variety of studies have shown that it's hardly a case of following around.

My gut feel is that you're mistaken, but I'm always willing to be enlightened. Can you point to any of these studies? My recollection is that Thomas initally almost never wrote opinions, almost never asked questions, and sided with Scalia most of the time. But I could be wrong.

Scalia and Thomas were on opposite sides in the recent Wine import case, too. Scalia was on the
losing side of that 5-4 decision. All in all, I would side with Thomas on both decisions. Too bad the founders didn't require super-majorities in Supreme Court cases: go back through history and see how many 5-4 and 6-3 decisions there are.
How is the average citizen supposed to comport to laws which the best learned judges in the land can't agree on?

Like judges are really appointed to the Supreme Court because they are the best instead of for political reasons.

Go do a search Michigander, for you are wrong. Scalia and Thomas have really never been (perhaps in Thomas' first year or two, which isn't statistically significant) the justices most in agreement. That slur was always just part of the quasi-racist (conservatives of African heritage are commonly labeled Uncle Toms) or ideologically driven desire to disparage Thomas at all costs. It seems clear to me these days, although Thomas is less that perfect (what Justice isn't?), he is easily the most intellectually honest member of the court these days. I kinda wish Bush would nominate him for chief justice, just to drive some folks nuts.

Go do a search Michigander, for you are wrong. Scalia and Thomas have really never been (perhaps in Thomas' first year or two, which isn't statistically significant) the justices most in agreement.

Found one oft-cited study by SCOTUSBlog, said they were #7 in agreement. If I remember my combinatorics, there would be 32 pairs of justice, so they're in agreement often but not the most. Found another talking about the 96-77 session that said:

The two Supreme Court justices who voted together most often – remarkably, in all but one case – were Scalia and Thomas.

During his third term, Thomas's eight-two percent agreement rate with Scalia created the strongest two-justice voting pair on the Court.

Found a good page, one with data.

Look at http://users.erols.com/aejohns/supcourt.htm.
It only reviews the 99-00 term and the 00-01 term. If my middle-aged eyes haven't misled me, the Justices most in agreement in 99-00? Stevens/Ginsburg followed by Thomas/Scalia. For 00-01, Stevens/Breyer and Ginsburg/Breyer tie for 1st, followed by Thomas/Scalia in third.

So Will, calling the Thomas-Scalia agreement a "quasi-racist" slur is unproductive name-calling. They have been in close agreement, the closest or second closest three, five and eight years after Thomas joined the bench. Recently, they have differed more.

And when they came in 7th? The comment from SCOTUSBlog is [Emphasis added]:

...Justices Scalia and Thomas–who historically have been the justices with the greatest degree of affinity–this year disagreed more often than in the last 8 years.

Well, gosh, Michigander, I await all the rhetoric pertaining to how Breyer and Ginsburg simply follow Stevens. Of course, since neither Breyer and Ginsburg are black conservatives, I'm likely to be waiting a very long time.

Well, gosh, Michigander, I await all the rhetoric pertaining to how Breyer and Ginsburg simply follow Stevens.

Well, if the pattern follows for eight years or so, you might have a point. If you look at aejohn's page and simply sum the two coefficients for the 99-00 session and the 00-01 session, guess who pops to the top of the charts for the two sessions? Thomas/Scalia.

The numbers that I've found are pretty convincing that for ten years or so, they voted in tandem more than any other pair of judges.

Will, you stated I was wrong and invited me to do a search. I've done the search, the data I found supports my impression and disagrees with your contention that "Scalia and Thomas have really never been ... the justices most in agreement". But that's the result of an initial search. If you have some data that supports your position, I'd like to see it. I'm willing to be convinced by a better analysis.

Back to this particular case, I think Thomas hit a bullseye. Apparently, in the Brave New World that we live in, everything is under the Commerce Clause.

No, Michigander, I wouldn't, because the fact that two justices vote in tandem is NOT proof that one is "following" another, which is the proposition you originally supported. Some years Thomas and Scalia have voted most often together, some they haven't, but it is clearly a racist assumption by some (not necessarily you, since I haven't read enough of you), that Thomas has been "following" Scalia, often put forth by the sort of cretins who pronounce any black conservative an Uncle Tom.

Will, for a long time Thomas was also the Justice that asked the least questions and said the least in oral arguments, while Scalia just loves to show off his brains. I also think (haven't looked it up) that Thomas wrote few opinions in his first few years on the court. So it sure looked like Scalia was the dominant one of the pair.

But Thomas has come into his own now, with the only opinion that makes sense in terms of the text of the Constitution. And Scalia has once again proven that he's willing to use that brilliant mind of his to justify any law he likes...

No, markm, the fact that one justice does not ask questions in oral arguments is not proof that one justice is following another, and it simply inaccurate to say otherwise. Furthermore, Michigander performs the neat trick of adding two coefficients from two years, and because Thomas/Scalia had the highed total, he declares as yet more proof that Scalia is "followed" by Thomas. Of course, he neglects to mention that the Scalia/Thomas sum was 1.26, while the Stevens/Ginsburg sum was 1.23.

This is how social science gets a bad reputation, especially when it is used by some to ostensibly read the minds of individuals. It is about as "scientific" as tossing chicken bones on the ground.

Did I not attempt to read the minds of some people, although I explicitly did not do so with Michigander? Yes, but when some people make a practice of labeling black conservatives in the most heinous charge possible, it is not an unwarranted assumption.

Again, I await the rhetoric decribing Ginsburg as "following" Stevens.

Of course, people said that Justice Thurgood Marshall followed Justice Brennan around.

Considering that--as Bob Woodward noted in The Brethren--Marshall would often write "follow Bill" on notes to his clerks regarding opinions he was writing, they had a very good reason for saying that. Of course, no one would ever imply that the fact that Marshall voted with Brennan 90% of the time meant that he was stupid or a mindless clone of Brennan, as Thomas has had to endure from the usual suspects regarding his tendency to vote with Scalia.

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