You Make The Judicial Call

[420]

With the parties warring over the composition of the federal judiciary, and with a Supreme Court vacancy perhaps impending, Americans should use the court's end-of-term decisions as whetstones on which to sharpen their sense of the ambiguities in the categories used when judges are discussed: liberal, conservative, activist, practitioner of judicial restraint.

Consider the case arising from the destruction, by agents of the Drug Enforcement Agency, of Diane Monson's home-grown marijuana plants, a case about which the court's two most conservative justices, Antonin Scalia and Clarence Thomas, disagreed.

Monson and another woman using home-grown marijuana recommended by her doctors sought an injunction against enforcement of the federal Controlled Substances Act. Both said they had a right to their plants under California's Compassionate Use Act.

But this law and those in 10 other states run contrary to the federal statute. The women argued against enforcement of that law, saying that the private use of home-grown marijuana has nothing to do with interstate commerce, hence Congress has no constitutional power to regulate it. On Monday the Supreme Court disagreed.

In a 6-3 ruling, the court held that Congress' claim to exclusive regulatory authority over drugs, legal and illegal, fell well within its constitutional power to regulate interstate commerce. This was predictable, given what the court said 63 years ago about an Ohio farmer's 239 bushels of home-grown wheat.

That, used for food, seeds and feed for livestock, was raised and used entirely on Roscoe Filburn's farm. So Filburn argued that although the 239 bushels exceeded his production quotas under the federal Agricultural Adjustment Act, they were none of the federal government's business, and he refused to pay the stipulated penalty.

A unanimous Supreme Court disagreed, arguing that the cumulative effect of even minor and local economic activities can have interstate consequences. That said, clearly Congress' power under the Commerce Clause is vast enough to permit Congress to decide that the use of even home-grown marijuana can affect the interstate market.

Writing for Monday's majority, Justice John Paul Stevens, perhaps the most liberal justice, was joined by Justices Stephen Breyer, David Souter, Ruth Bader Ginsburg and Anthony Kennedy. Scalia concurred separately. Stevens said that one does not need "a degree in economics to understand why a nationwide exemption" for large quantities of marijuana cultivated for personal use could have a "substantial impact on the interstate market" for a commodity that Congress aims to "conquer." Scalia, responding to the two women's and the court minority's invocation of states' sovereignty, cited a previous court ruling that Congress may regulate even when its regulation "may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress."

Justice Sandra Day O'Connor, a former Arizona state legislator, dissented, echoing Justice Louis Brandeis' judgment that federalism is supposed to allow a single state to be a "laboratory" to "try novel social and economic experiments without risk to the rest of the country." Her dissent was joined by Chief Justice William Rehnquist.

Thomas, the justice least respectful of precedents, joined O'Connor's dissent and also dissented separately, disregarding many precedents giving almost infinite elasticity to the Commerce Clause. He said that the women's marijuana was never bought or sold, never crossed state lines and had no "demonstrable" effect on the national market for marijuana: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything" including "quilting bees, clothes drives and potluck suppers."

In Monday's decision, which of the justices were liberal, which were conservative? Which exemplified judicial activism, which exemplified restraint? Such judgments are not as easy as many suppose.

Pubdate: Fri, 10 Jun 2005
Source: Indianapolis Star (IN)
Copyright: 2005 Washington Post Writers Group
Contact: http://www.indystar.com/help/contact/letters.html
Website: http://www.starnews.com/