Justice Thomas

In my previous post about the Oregon Assisted Suicide Case, I wondered how Clarence Thomas could have dissented. It turns out his was a protest vote upholding the precedent of Raich. From the WSJ editorial page:

n his own brief dissent, Justice Thomas cuts to the heart of the hypocrisy, pointing out that a mere seven months ago five of the six Justices in the majority in Oregon found broad federal authority under the same Controlled Substances Act to forbid the growth of medical marijuana, overruling a California law permitting the practice in Gonzales V. Raich.

Justice Thomas had argued for a more-limited federal authority in Raich, but in Oregon he seems to have cast what amounts to a protest vote for the minority. "I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure," Justice Thomas writes. "But that is now water over the dam." In other words, he's not about to join the Court's liberals in ignoring their own precedents simply to get to their favored policy conclusion.

Once again, Clarence Thomas proves why he's a great supreme court justice. From Glen Whitman I found this key passage from Thomas' dissent:

I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (THOMAS, J., dissenting)... But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States’ “ ‘traditional . . . powers . . . to protect the health, safety, and welfare of their citizens.’ ”2 Raich, supra, at ___, n. 38 (slip op., at 27, n. 38). The Court’s reliance upon the constitutional principles that it rejected in Raich—albeit under the guise of statutory interpretation—is perplexing to say the least. Accordingly, I respectfully dissent.

So Thomas was somehow trying to bring more Federalism to the court at the same time as he was upholding a bad precedent.