Scalia, fair-weather federalist

Randy Barnett, the losing lawyer in the Raich marijuana case, explains the trap the Ninth Circuit set for the Supremes, and underscores the importance of getting some real federalists on the court:

Justice Scalia now joins in expanding the reach of the Commerce Clause power beyond even that which the Court had endorsed in Wickard v. Filburn. In oral argument he admitted, “I always used to laugh at Wickard.” Now it’s Judge Stephen Reinhardt and the Ninth Circuit’s turn to laugh.

Gonzales v. Raich has had the salutary effect of showing that federalism is not just for conservatives. Many liberals are distressed about Justice Stevens’s opinion. With a Republican Congress they have come to see the virtue of state experimentation. The case also succeeded in raising the national visibility of the medical-cannabis cause. Maybe now Congress will act where it has refused to act in the past.

But Gonzales v. Raich has placed the future of the New Federalism in doubt, which makes future appointments to the Supreme Court all the more important. Will the president name someone who, like Justice Thomas, is truly committed to federalism? Or will his nominee be a fair-weather federalist, as Justice Scalia has turned out to be when the chips were down?

Scalia has disappointed many of those who once thought him a principled and intelligent jurist. His position on Raich may have been taken for career reasons – he wants to be Chief Justice – and it didn’t ultimately affect the outcome, but it was still probably wrong.

But Barnett grossly overstates his case. Had the majority ruled in favor of upholding the Ninth Circuit in this case, the constitutional underpinning for Social Security, OSHA, the ADA, and VAWA would all be in doubt, and the law would essentially be as it was in 1935 when Congress had very little power. It could be that Scalia simply felt that was going too far, too fast.

UPDATE: Writing on the VC, Orin Kerr goes into this stability of the law business by way of explaining Kennedy’s vote, quoting this from Kennedy’s concurrence in the Lopez case, one of the hallmarks of the New Federalism:

[T]he Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.

So it comes down to this: even if the anti-federalism of the 30s and since is wrong, it can’t be corrected right away without messing with our system of government in a serious way*. Barnett doesn’t see this, so his railings against the court are pretty shrill at the moment.

It appears that the best way to deal with the medical marijuana issue is for Congress to change federal law; that is, after all, their job.

*For example, most newspapers don’t cover their state legislatures in a serious way, so increased decision-making at the state level today would largely take place in secret. In time, this would change, but until it did the quality of our laws would suffer.