“Bummer, Dude” From the Supreme Court – The Blogs


The blog reaction to the verdict is across the board. The liberals are upset because someone is messing with their herb, but can not believe that it was the conservatives who tried to protect the stash, and the liberals who want hassle their buzz.  The conservatives seem to be befuddled too, mainly because it is another bad precedent coming out of the courts that will take away states rights in a case that obviously does not need to be addressed by the Supreme Court.

Now for the wrap up.

 For text excerpts from these articles, please click the “Read the rest of this entry” below

Orrin Kerr at The Volokh Conspiracy

  Why did the Raich case take so long to hand down? This is sheer speculation, but the most likely explanation to me is that it probably took awhile for Justice Stevens to secure a majority opinion. Stevens assigned the case to himself and probably had the 6 votes to uphold the statute at the outset, but he needed to get four other Justices to sign on to his opinion to make a majority. Getting three Justices to sign on was probably easy; Souter, Breyer, and Ginsburg have views on these issues pretty similar to Stevens’. The trick probably was getting the fourth vote. In the end, Scalia decided to break off and write separately, but Kennedy agreed to join the Stevens opinion. My guess is that the delay was caused by the time it took for those votes to settle. As I said, though, this is just a guess. (Another explanation may just be that four opinions were filed in the case, none of them short, and perhaps it just took awhile for everyone to finish.)

Radley Balko over at the Agitator  likes the Thomas opinion:


…was dead-on, and proves to be the only principled federalist with an orginalist view of the Commerce Clause. Nut:

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.


Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

Thomas also takes shots at Scalia’s concurring “ends justifies the means” opinion (discussed below):

To act under the Necessary and Proper Clause, then, Congress must select a means that is “appropriate” and “plainly adapted” to executing an enumerated power; the means cannot be otherwise “prohibited” by the Constitution; and the means cannot be inconsistent with “the letter and spirit of the [C]onstitution.”

The CSA, as applied to respondents’ conduct, is not a valid exercise of Congress’ power under the Necessary and Proper Clause.

Realistic Revolution has this opinion from the left:

I can’t believe this. I strongly disagree with this ruling. Personally I feel that if you have cancer or another horrible disease that is making your miserable all the time, you can put whatever you want in your body to make it feel better. Especially when it is a plant that grows naturally, isn’t modified in any way other then drying, and has never caused an overdose death, ever. How can we sit there and tell a person going through chemotherapy that they can’t get relief from marijuana? You can be given morphine which is for all intents and purposes Heroin, but if marijuana is what give you relief, sorry you’re out of luck.

The craziest part of all this may be the dissenters. Who would have thought that both Rehnquist and Thomas would vote against medical marijuana being prosecuted and it still would still be ruled as prosecutable anyway? All this does is make it harder for older people who actually marijuana for a medical purpose to get it while those you like smoke pot for fun continue to get it as easily as ever. I really hope congress decides to go ahead and finally make a law that states medical marijuana is a states decision.

IndyBay.com is quite upset. but forgets to mention the fact that the conservative judges sided with them, and the liberal judges were against the states rights:

The US Supreme Court today ruled against Angel Raich and Diane Monson in their medical marijuana case. This means that the federal government can continue arresting patients who are using medical marijuana legally under state law. However, according to a statement from the Marijuana Policy Project, the decision did not overturn the medical marijuana laws in 10 states that protect patients from arrest by state and local police. The nation’s highest court said that it is Congress, not the Court, who would have the jurisdiction to change federal law to protect medical marijuana patients from arrest.

In its majority opinion against Raich and Monson, the Court issued a significant word of warning about the wisdom of current federal laws: “The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally.” California NORML says in response, “The DEA and federal law enforcement officials would be well advised to heed this caution before rushing to enforce their bankrupt federal law.”

Kevin Aylward at Wizbang wonders if the media will report the story correctly:

The story is sure to reported incorrectly as the SCOTUS striking down the state marijuana laws. I’ve found no indication that the Court overturned the state law (California in this case), but rather they reiterated the federal law. The real question is whether state law enforcement agencies will turn a blind eye to that which is legal under state law and illegal under federal law. I’m guessing they will…

Protein Wisdom is just a little annoyed:

 Well, so much for states’ rights.  To be clear, this ruling is nothing to do with legalizing drugs and everything to do with federal overreach (specifically on the part of the Justice Dept).  To justify this ruling under the Commerce Clause means that just about anything the Court chooses to justify with the Commerce Clause is fair game, which, in effect, means that federalism is truly moribund—just one more piece of ideology jurists can summon when useful, or dismiss when inconvenient, if they find themselves inclined toward massaging the law to fit a personal belief. 

Which, isn’t that the very definition of judicial activism?

Or, to put it more bluntly, there is nothing conservative about the prospect of federal law enforcement officers going state to state arresting sick people who’ve opted to make use of a plant, prescribed by doctors, to relieve their pain.  I’m eager to see the how the social conservatives who supported Lawrence (as I did, provisionally—though I’m anything but a social conservative) will react to this.  Hopefully they won’t tie themselves in knots trying to reconcile the two decisions…

Now if you’ll excuse me, I think I’ll go engage in a little civil disobedience.  BECAUSE OF THE HYPOCRISY!  AND THE FUNYONS!

Posted June 6, 2005 by
General, Judicial | no comments

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