Interestingly, four justices who shot down federalism in favor of a more expansive interpretation of the CSA in Raich v. Gonzalez (the medical marijuana case) took the opposite position today. Those justices were Stevens, Ginsburg, Breyer, and Souter, who deserve praise for their good decision today but castigation for their inconsistency. Two justices, Kennedy and O’Connor, get points for both correctness and consistency, having supported federalism (and thus the narrow application of the CSA) in both cases. One justice, Scalia, gets points for consistency alone, as he took the wrong side in both cases. And even those points should be docked for inconsistency with Scalia’s expressed support for federalism in earlier cases. (Chief Justice Roberts joined Scalia's dissent, but wasn't on the Court for the Raich case.)
And then there’s the anomaly: Justice Thomas, who supported federalism and a narrow reading of the CSA in Raich, but took the opposite position today. Like David Beito and Radley Balko, I was perplexed, so I read Thomas’s dissent. The good news is that Thomas still believes in the right principles; the bad news is that he has bad strategy. Here’s the key passage (emphasis mine):
I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (THOMAS, J., dissenting)... But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States’ “ ‘traditional . . . powers . . . to protect the health, safety, and welfare of their citizens.’ ”2 Raich, supra, at ___, n. 38 (slip op., at 27, n. 38). The Court’s reliance upon the constitutional principles that it rejected in Raich—albeit under the guise of statutory interpretation—is perplexing to say the least. Accordingly, I respectfully dissent.In short, Thomas deferred to the precedent set by Raich – a precedent with which he disagreed and that the majority implicitly rejected in the present case. This makes sense, if we take as given the Court’s decision in this case to ignore the issue of federalism and focus entirely on the matter of statutory interpretation. But why not force the federalism issue onto the table? Thomas may have thought he was doing so by writing a dissent, but a concurring opinion would have been the more appropriate vehicle in this case. That way, he could have affirmed what he clearly believed was the right choice on constitutional grounds, while shining a spotlight on four other justices’ inconsistency. I suspect this would have been a better strategy for rehabilitating the principles that were so damaged by Raich.