Judging This Court

washingtonpost.com
Judging This Court

By George F. Will
Wednesday, June 8, 2005; A21

With the parties warring over the composition of the federal judiciary, and with a Supreme Court vacancy perhaps impending, Americans should use the court's end-of-term decisions as whetstones on which to sharpen their sense of the ambiguities in the categories -- "liberal," "conservative," "activist," "practitioner of judicial restraint" -- used when judges are discussed. Consider the case arising from the destruction, by agents of the Drug Enforcement Administration, of Diane Monson's homegrown marijuana plants, a case about which the court's two most conservative justices, Antonin Scalia and Clarence Thomas, disagreed.

Monson, and another woman using homegrown marijuana recommended by her doctors, sought an injunction against enforcement of the federal Controlled Substances Act. Both said they had a right to their plants under California's Compassionate Use Act. Passed overwhelmingly by referendum in 1996, that act allows marijuana use by individuals whose doctors recommend it for the relief of pain or nausea. But this law -- 10 other states have similar ones -- runs contrary to the federal statute.

The two women argued against enforcement of that law, saying that the private use of homegrown marijuana has nothing to do with interstate commerce; hence Congress has no constitutional power to regulate it. On Monday the Supreme Court disagreed. In a 6 to 3 ruling, the court held that Congress's claim to exclusive regulatory authority over drugs, legal and illegal, fell well within its constitutional power to regulate interstate commerce. This was predictable, given what the court said 63 years ago about an Ohio farmer's 239 bushels of homegrown wheat.


That, used for food, seeds and feed for livestock, was raised and used entirely on Roscoe Filburn's farm. None of it entered intrastate, let alone interstate, commerce. So Filburn argued that although the 239 bushels exceeded his production quotas under the federal Agricultural Adjustment Act, they were none of the federal government's business, and he refused to pay the stipulated penalty.

A unanimous Supreme Court disagreed, arguing that the cumulative effect of even minor and local economic activities can have interstate consequences. The court said even a small quantity of grain "supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Homegrown wheat in this sense competes with wheat in commerce." That said, clearly Congress's power under the Commerce Clause is vast enough to permit Congress to decide that the use of even homegrown marijuana can affect the interstate market.

Writing for Monday's majority, Justice John Paul Stevens, perhaps the most liberal justice, was joined by Justices Stephen Breyer, David Souter, Ruth Bader Ginsburg and Anthony Kennedy. Scalia concurred separately. Stevens said that one does not need "a degree in economics to understand why a nationwide exemption" for large quantities of marijuana cultivated for personal use could have a "substantial impact on the interstate market" for a commodity that Congress aims to "conquer." Scalia, responding to the two women's and the court minority's invocation of states' sovereignty, cited a previous court ruling that Congress may regulate even when its regulation "may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress."

Justice Sandra Day O'Connor, a former Arizona state legislator, dissented, echoing Justice Louis Brandeis's judgment that federalism is supposed to allow a single state to be a "laboratory" to "try novel social and economic experiments without risk to the rest of the country." Her dissent was joined by Chief Justice William Rehnquist, who wrote the court's opinion in a 1995 case that conservatives mistakenly hoped would signal substantial inhibitions on Congress in the name of federalism. In that case, the court overturned, as an invalid exercise of the power to regulate commerce, a federal law regulating the possession of guns near schools.

Thomas, the justice least respectful of precedents, joined O'Connor's dissent and also dissented separately, disregarding many precedents giving almost infinite elasticity to the Commerce Clause. He said that the women's marijuana was never bought or sold, never crossed state lines and had no "demonstrable" effect on the national market for marijuana: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything," including "quilting bees, clothes drives and potluck suppers." Thus "the federal government is no longer one of limited and enumerated powers." But that has been the case at least since 1942.

In Monday's decision, which of the justices were liberal, which were conservative? Which exemplified judicial activism, which exemplified restraint? Such judgments are not as easy as many suppose.

georgewill@washpost.com