Scalia on the Federalization of the War on Drugs

Justices Stephen Breyer and Antonin Scalia testified before the Senate Judiciary Committee yesterday. Scalia made the interesting argument that the creation of numerous federal drug crimes has reduced the quality of the federal judiciary:

Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.

Federal judges ain’t what they used to be,” he said during a rare appearance before the Senate Judiciary Committee..

The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. “It’s not as elite as it used to be,” he said.

He was responding to a question about what he sees as the greatest threat to the independence of judges.

I am no fan of either the War on Drugs or the federalization of criminal law. I’m even less of a fan of the combination of the two. And Scalia is certainly right to criticize Congress for federalizing too many petty drug crimes. Unfortunately, however, he himself has contributed to the problem (at least at the margin) by voting to uphold one of Congress’ most constitutionally dubious extensions of federal drug law in Gonzales v. Raich, which I discussed here.