« American Dummitude: The End Of Western Civilization? | Main | KerryWatch: Mullah-ing It Ovah »

January 20, 2006

Clarence Thomas: Lord Of The Nazgul


It appears my original theory was correct after all. Avid legal conspiracy-theorists may recall that just after Gonzalez v. Raich, Jeff Rosen was flogging Justice Thomas as the Dread Lord of the Constitution-in-Exile Movement:

The most radical dissenting opinion was written by Thomas. Thomas has proved to be the most reliable ally of the movement to resurrect what some conservatives call the Constitution in Exile, referring to limitations on federal power that have been dormant since the New Deal.

I was more-than-mildly surprised to find myself concurring with Herr Rosen's assessment:

Thomas. Mein Gott Im Himmel!, who would have guessed it! That pudgy, avuncular-looking little man, suddenly rising up in his black robes like the Lord of the Nazgul. Stooping to pick at the flesh of a Woman's Right To Choose and grabbing welfare dollars from the hands of baby-Daddies all over this great nation! Sure, he may look like a teddy bear, but he's [[[shudder]]] worse than Scalia!

With the latest decision from SCOTUS, Judge Dread has managed to confound just about everyone. In a transparent bid to win over the elusive Federalist Livid Terrier demographic, Thomas did a double-fake with a half-twist to throw the opposition off the scent:

...imagine my initial confusion, having not paid close attention to the case, when I learned the line-up. The 3 justices who voted to uphold the Federal government's power were Thomas, Scalia and Roberts.

Now, Roberts wasn't involved in Raich, so no conclusion can be drawn from that. And Scalia's and O'Conner's votes seemed consistent. O'Conner voted to overturn the Federal intrusion in Raich, as she did in Oregon. Likewise, Scalia's dissent is consistent with his vote in Raich, which was to uphold the Federal power.

But what was up with the other justices -- those who upheld the Feds in the Raich opinion and defeated the Feds in Oregon? And what of Thomas? Did he switch sides as well?

Several pundits misread Thomas' dissent as a churlish calling-out of both the majority opinion and fellow-conservative Nino Scalia's rulings in Raich, so far as I can tell, based on the following passage:

The majority's newfound understanding of the CSA as a statute of limited reach is all the more puzzling because it rests upon constitutional principles that the majority of the Court rejected in Raich. Notwithstanding the States' " 'traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens,' ", the Raich majority concluded that the CSA applied to the intrastate possession of marijuana for medicinal purposes authorized by California law because "Congress could have rationally" concluded that such an application was necessary to the regulation of the "larger interstate marijuana market." Here, by contrast, the majority's restrictive interpretation of the CSA is based in no small part on "the structure and limitations of federalism, which allow the States ' "great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons." According to the majority, these "background principles of our federal system ... belie the notion that Congress would use ... an obscure grant of authority to regulate areas traditionally supervised by the States' police power."

Here Thomas points out that a mere seven months ago the same Justices issued an utterly inconsistent precedent in Raich, saying that as long as Congress had some rational basis for doing so, it could use the Commerce Clause to regulate the wholly intrastate use of a controlled substance (marijuana) to relieve discomfort in terminal illnesses, trumping the State's Constitutional power to define criminal law and regulate the health and welfare of its citizens. Now, in Oregon, the majority admits the Attorney General's determination that the same law (CSA) prohibits the interstate** prescription and use of a controlled substance (morpheine) to end a terminal illness is "at least reasonable". Yet it somehow comes to the opposite conclusion: i.e., the State's power pre-empts that of the federal government, even when the drug involved is more addicting and interstate commerce is involved, where in Raich it was not. No wonder Thomas is peeved.

As a federalist, Thomas would clearly like to rule with majority:

Of course there is nothing "obscure" about the CSA's grant of authority to the Attorney General. Ante, p. ___ (Scalia, J., dissenting). And, the Attorney General's conclusion that the CSA prohibits the States from authorizing physician assisted suicide is admittedly "at least reasonable," (opinion of the Court), and is therefore entitled to deference. Ante, at 6-7 (Scalia, J., dissenting). While the scope of the CSA and the Attorney General's power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court's Commerce Clause and separation-of-powers jurisprudence.

So he is relying on precedent. But why? Thomas has never been particularly awed by precedent. Is he, as his detractors claim, childishly rubbing his fellow jurists noses in their own hypocrisy? It begins to seem so. When he leads off in the next paragraph, citing his own dissents, you can almost hear take it up another notch, yelling out, "BAM!" after every cite, a la Emeril:

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); cf. Whitman, supra, at 486-487 (Thomas, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). 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.' 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.

But remember that Thomas is a quiet kind of man. Solid, careful, methodical and painstaking. Not the kind of guy who is in love with the sound of his own voice. The italicized portion is the key to understanding the dissent in full. Read his footnotes:

Notably, respondents have not seriously pressed a constitutional claim here, conceding at oral argument that their "point is not necessarily that [the CSA] would be unconstitutional." Tr. of Oral Arg. 44. *****In any event, to the extent respondents do present a constitutional claim, they do so solely within the framework of Raich. Framed in this manner, the claim must fail. ******The respondents in Raich were "local growers and users of state-authorized, medical marijuana," who stood "outside the interstate drug market" and possessed " 'medicinal marijuana ... not intended for ... the stream of commerce.' Here, by contrast, the respondent-physicians are active participants in the interstate controlled substances market, and the drugs they prescribe for assisting suicide have likely traveled in interstate commerce. If the respondents in Raich could not sustain a constitutional claim, then a fortiori respondents here cannot sustain one. ****Respondents' acceptance of Raich forecloses their constitutional challenge.****

What is Thomas really saying? Had Oregon challenged the Controlled Substances Act on Commerce Clause grounds, he would have gladly taken their side. But they did not raise that issue. In his view, Raich may be wrong, but it is now law. If the Commerce Clause now allows the CSA to regulate the wholly intrastate use of marijuana then it certainly authorizes the Attorney General to regulate the use of morpheine that involves interstate commerce, little as Thomas likes that outcome.

He is not about to overrule a precedent that the parties did not take issue with, so he is forced to give broad deference instead to what the majority termed the Attorney General's "reasonable interpretation" of a broadly written statute. Once again, he has shown that he values principle and consistent application of law over the ability to engineer what he personally views as a desired outcome.

And in my view, that is good law. It must also be infuriating.

Now Scalia on the other hand....

Interestingly, this case could also be viewed as not being a federalism case, but perhaps as a separation of powers case. One wonders what would have happened if Congress had written a statute explicitly prohibiting assisted suicide? That would be an interesting vote. In that context, I see the Roberts/Scalia/Thomas split as upholding Executive branch power since it was the Attorney General interpreting a statute, and the majority reflexively resisting that exercise of authority. But I could be all wet on that one.

** because interstate commerce will definitely be involved in this instance

Posted by Cassandra at January 20, 2006 06:53 AM


Hmmmm. Someone's baaaaaack!

Posted by: John of Argghhh! [TypeKey Profile Page] at January 20, 2006 03:36 PM

There are rumors to that effect, but I don't believe them.

Posted by: Cassandra [TypeKey Profile Page] at January 20, 2006 03:50 PM

Add me to the long list of people glad to see you back in the saddle.

Posted by: Masked MenaceĀ© [TypeKey Profile Page] at January 20, 2006 06:46 PM

Hello Menace :)

I have missed you too.

Posted by: Cassandra [TypeKey Profile Page] at January 20, 2006 08:01 PM

Post a comment

Remember Me?

(you may use HTML tags for style)