Crime & Federalism

In a recent post discussing Justice Scalia's concurring opinion in Gonzales v. Raich, Orin Kerr wrote:

I've read lots of speculation in the blogosphere that Justice Scalia voted in the government's favor in Gonzales v. Raich because he's a social conservative who wants the government to crack down on drugs. If that's true, though, why did he vote in favor of the marijuana grower in Kyllo v. United States? And why did he vote in favor of the crack dealer in United States v. Booker? Is the idea that Scalia is principled when he votes in favor of defendants, but is just a social conservative when he votes in favor of the government?

As an initial matter, Kyllo wasn't about a marijuana grower: it was about whether cops could use thermal imaging devices to invade one's home.  The Eric Berndt incident taught us that Scalia cares a lot about sexual privacy - or, at least, his own sexual privacy.

Booker wasn't about crack dealers: it was about whether certain facts had to be proved to a jury. Even after Kyllo and Booker, law enforcement has plenty of ways to capture drug dealers, and to send them away to prison for a very long time.  So the practical effect of Kyllo and Booker had little to do with increased drug use.  Raich was different.  Very different.  And Scalia and other anti-drug advocates saw that.

To many people, Raich was not about the Commerce Clause: it was about medical marijuana.  The immedate effect of Raich would have been disastrous: thousands of Californians and citizens from ten other states would have been able to legally smoke marijuana.  Post-Raich, many other states would have legalized medical marijuana.  Thus, for an anti-drug zealot, Raich would have been terrible.  By holding the way he did, Justice Scalia ensured that marijuana will remain illegal for a long time.

Having said that, I'm not sure Justice Scalia voted in the government's favor because he hates drugs, but I can understand why others think this.

Justice Scalia advocates that judges return to an original understanding of the Constitution.  Most of us have seen or heard him lecture on his originalism (or read his book), so there's no need to rehash his arguments.  But in Raich, Scalia did not turn to an original understanding of the Commerce or Necessary and Proper Clauses.  I've read Scalia's concurrence three times and can't find an reference to originalism.  So, where goeth Scalia's originalism?

People are justifiably confused, and justifiably entitled to believe that Justice Scalia relied on extrajudicial reasons for siding with the government in Raich.  Scalia didn't justify his departure from his supposed originalist methods.  Nor did he even attempt to refute Justice Thomas' originalist dissent.  Why not?

Supreme Court Justices properly refuse to respond to every nit-picky argument.  But whether or not a Justice is applying his supposed core judicial philosophy is hardly a small point.  Moreover, Scalia once joined every part of an opinion except a footnote that cited legislative history, to make clear his vision of statutory interpretation.  So he's not afraid to take rather petty measures to ensure his personal vision of the Constitution remains clear.  Why was similar vigilance lacking in Raich?

Again, I'm not arguing that Justice Scalia voted the way he did because he hated marijuana.  Still, I do understand why others might suspect otherwise.