Crime & Federalism

Justice Thomas joined all but Part III of Justice O'Connor's dissent, which in relevant part reads:

If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent

I wonder....

UPDATE: Thanks to Marty Lederman for sharing this e-mail from Professor Sandy Levinson (which I hadn't seen but was nonetheless written before my post):

I note that Rehnquist and Thomas do not join in the very short part III of O'Connor's dissent, presumably because of the following lines:

"If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case."

So why didn't they join?  A) It is inappropriate for justices to offer their gratuitous views on political issues.  But this can't be the explanation given Thomas's statements in his Lawrence dissent as to the merits of Texas's statute.  So maybe it is B) Were Thomas (and Rehnquist, who may look at the world somewhat differently now that he has received chemotherapy) would, as a matter of fact, vote for such laws. (Query:  Did Justice O'Connor receive chemotherapy for her breast cancer?)

Consider Thomas's statement at the conclusion of his opinion that "The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill."  To be sure, this may simply be descritive of what California has "concluded."  But I think that the phrase "much-needed respite" may bespeak a "compassionate conservatism" (I am not being sarcastic).  And note, incidentally, the conclusion of Stevens' majority opinion, which I read as an expression of hope that Congress will indeed come to its senses regarding such regulation of medical marijuana.