Category: Law

It’s always seemed to me that Larry Lessig had an unusual beef with authority, and now I know why:

As head boy at a legendary choir school, Lawrence Lessig was repeatedly molested by the charismatic choir director, part of a horrific pattern of child abuse there. Now, as one of America’s most famous lawyers, he’s put his own past on trial to make sure such a thing never happens again.

This is really quite astounding.

Not all courts are full of it. This one got it right:

NEW YORK (MarketWatch) -Former Tyco International CEO Dennis Kozlowski was convicted Friday in a Manhattan court of stealing from the company.

Kozlowski and co-defendant and former Tyco (TYC: news, chart, profile) CFO Mark Swartz were both convicted of conspiracy, securities fraud and 8 of 9 counts of falsifying records.

Both men were charged with stealing money from Tyco to fund an elaborate lifestyle of luxury homes and parties.

Another Clinton-era crook goes to the Graybar Hotel.

In a previous entry about the Raich case, we lamely plumbed Scalia’s reasons for siding with the majority in the federal marijuana case, speculating that either careerism or a concern for stability drove his reasoning, but this article by Matt Welch raises another, more plausible reason for Scalia voting as he did that federal drug laws needed to prohibit medical marijuana to be effective. Matt says:

Those who fret about morality in America, take note: Raich v. Gonzales codifies our status as a Nation of Liars.

…because the drug laws are hypocritical, etc. But he ignores another dimension of the lying about drugs that’s material to this case, namely the whole “medical use” scam. Look, we all know that medical use is just a tricky way to legalize pot; that was the intent of the people who put these initiatives before the voters, and that’s been the effect of medical use in California. Anybody who’s caught with personal quantities of pot in California today is presumed to be a medical user, so in effect anybody can grow, smoke, and possess fairly significant amounts of dope without worrying about local law enforcement. Something very similar happened with abortion back when Reagan was governor. He signed a bill saying abortion was permissible to preserve the health of the mother, and before you knew it every pregnant woman with some anxiety about raising a kid had a medical problem that justified an abortion.

So when you look at the decisions of Justices Thomas and Scalia, you should bear in mind that Thomas writes about medical marijuana as it formally and superficially appears in the California law, and Scalia writes about it as it is. If you accept that the federal government is justified in regulating interstate commerce, and you deal with the reality of California under the medical use law, you have to conclude that California has attempted to undermine or circumvent federal authority with a tricky law that in fact has a significant effect on the interstate drug trade. On the basis of actual effects, the California law had to be struck down, leaving the matter to be settled by Congress, not the court.

And that’s actually as it should be, whether you like dope or not.

PFAW, the big-government/abortion rights group that always opposes good judges, has done the service of compiling a list of Janice Rogers Brown quotes on their website, including this one:

In truth, liberalism’s vaunted tolerance and openness is a lie. In America, at least, liberalism is tolerant only of those concerns to which it is indifferent. To those trivialized forms of religious observance which amount to no more than a consumer preference, the culture maintains a posture of tolerance.

You can see why they’re so upset with Brown, and why I’m so happy she was confirmed. Her performance as a Supreme Court justice in California was excellent, even though the California Bar gave her low ratings at the time of her nomination to the Appeals Court on account of her not having previous judging experience. I’d love to see her on the Supreme Court one day, alongside Richard Posner, Alex Kozinski, and Chief Justice Thomas.

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.

A Washington State judge has blown the election case, sending it to the State Supreme Court (where nothing will happen), because he can’t do arithmetic, and the US Supreme Court has shown that currying favor with social conservatives and big-government liberals is more important than getting the law right. It’s instructive for some of our readers to note that Scalia and Thomas came down on different sides of Gonzalez v. Raich (the federal marijuana case), and Thomas actually spanked Scalia’s butt big time in his dissent.