Tuesday, June 07, 2005

I used to disagree with Justice Scalia's opinions but respect the consistency and integrity with which he adhered to a specific legal philosophy. Not so any longer. Although Scalia voted against the Gun-Free School Zones Act and the Violence Against Women Act on the grounds that the federal government lacked the constitutional authority to regulate those issues locally, Scalia upheld federal authority yesterday in the Court's 6-3 decision to effectively overturn a California state law that allows for the medicinal use of marijuana.

In typically supercilious style, Scalia didn't sign the majority opinion, but instead wrote a concurring opinion of his own. His main rational: "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." To say the least, that's a rather weak argument for rather sweeping federal powers. What intrastate activity wouldn't qualify with that standard? At least Justice Stevens, who wrote the majority opinion, refered only to "Congress's power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce." Thus even Stevens left room for some local purview, depending on how any given 'class of activities' is defined.

To return to Scalia, however, this is surely one of the more flagitious decisions of his Supreme Court career. The federal government may well have a right to implement a national drug policy, but Scalia's rationale is a long way from adequately justifying why. Worse, his opinion betrays himself as fickle: a Justice whose reason, at least in this case, was deliberately manipulated to satisfy one particular personal belief.

Forgive me for interjecting here, but isn't such behavior the very definition of judicial activism?


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