My column on Gonzales v. Raich, The Ninth Circuit’s Revenge, is now up on National Review Online. Here is how it begins:
The Ninth Circuit finally got its revenge on the Supreme Court justices who seemed to delight in reversing it. In Gonzales v. Raich, it gave the conservatives a choice: Uphold the Ninth Circuit’s ruling favoring individuals engaged in the wholly intrastate non-economic activity of growing and consuming cannabis for medical purposes as recommended by a doctor and permitted by state law, or retreat from the landmark Commerce Clause decisions of U.S. v. Lopez (1995) and U.S. v. Morrison (2000). Either way the Ninth Circuit wins. But with Justices Kennedy and Scalia on the liberal side of the Court, the Ninth Circuit won big. So did Judge Stephen Reinhardt, who first implemented this strategy in the child-porn case of U.S. v. McCoy.
Of course, my clients and I were betting the other way. Either all five federalist justices would hold to their principles, or a few of the more liberal justices might decide to follow the “precedents” of Lopez and Morrison and make an exception to their principled stance in favor of federal power out of concern for the tens of thousands of suffering patents who acted through the democratic processes of their states to enact compassionate use acts. It was not to be.
I credit the four Lopez and Morrison dissenters with putting their vision of the Constitution above precedent. I agree that unconstitutional precedent should not be followed (see my take on precedent here). I credit even more the three dissenters. . . .
Raich does nicely illustrate why originalists need not be too bothered with the charge that they would reverse “precedent.” The four dissenters in Lopez continued to dissent five years later in Morrison and maintained their opposition to Lopez even ten years later in Raich. During oral argument I confronted the same arguments made by Justices Souter and Breyer in their Lopez and Morrison dissents long after they had been rejected the Court.
What about the “precedent” of Wickard v. Filburn so stressed by the Court in Raich? I won’t rehash all the ways that, as we argued, Wickard was distinguishable. For on thing, even the New Deal Congress did not attempt to reach backyard gardens; the Agricultural Adjustment Act even exempted small commercial(!) farms. Nor does the rationale that was used to justify reaching Roscoe Filburn’s wheat apply to Angel or Diane. Justice O’Connor explains all this in her dissent. The only justices who purported to be compelled to follow the precedent of Wickard were those who, for whatever reason, wanted to reach the result they did. Following Wickard was simply a means to that end. We asked the Court to reverse Wickard if it thought it was a barrier to ruling for us (this was included especially for Justice Thomas who won’t reconsider precedent unless specifically asked) but we honestly did not think that reversing Wickard was at all necessary.
To insist that originalists must follow precedent when no one else does (when they don’t want to) is less than compelling. Especially when there is good reason to conclude that no precedent should stand in the way of correcting a mistaken interpretation of the Constitution. Like many others, I think Wickard was wrongly decided. The fact that it is a precedent should provide no barrier to its reversal. But, as I said in my oral argument, Gonzales v. Raich now replaces Wickard v. Filburn “as the most far reaching example of Commerce Clause authority over intrastate activity” ever decided by the Supreme Court. For this reason, it will be studied by generations of Con Law students until the day it is finally reversed in favor of the correct reading of the Commerce Clause and Necessary and Proper Clause.
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