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That Time Scalia, Typically for State’s Rights, Sided with Big Government to Keep Marijuana Federally Illegal

Supreme Court Justice Antonin Scalia

The death of Supreme Court Justice and Conservative Constitutionalist Antonin Scalia leaves a legacy of Originalist interpretations of the Constitution – except when it comes to marijuana. Normally a supporter of states’ right when it comes to the Commerce Clause of the U.S. Constitution – Scalia sided with the federal government in a case that upheld the government’s right to seize marijuana, despite state law.  

Scalia died on Saturday in Texas while on a quail hunting trip with friends.  According to WFAA-TV in Dallas, his official cause of death was myocardial infarction, more commonly referred to as a heart attack.

Historically, the Commerce Clause has prevented states from regulating commerce between or among each other.  Scalia twice ruled in favor of the states’ rights over federal rights in this arena. His narrow interpretation of the clause was all but expected until the Supreme Court of the United States (SCOTUS) heard Gonzales v. Raich in 2005. For that case, he broadened his interpretation of the Commerce Clause.

This ruling gave Congress’ Commerce Clause authority to include the power to prohibit the local cultivation and use of marijuana – even when in compliance with state law.

The case was brought to the Supreme Court by a California woman, Angel Raich, whose physician-sanctioned home grow of cannabis was raided in 2002 by Drug Enforcement Agency agents. This was during the administration of President George W. Bush, who was known to go after medical marijuana no matter the scale of the operation, based on the federal ban as outlined in the 1932 Marijuana Tax Act. Federally illegal, California had long since passed Proposition 215, legalizing the use of medical marijuana on the state level.

In a 6 – 3 ruling supporting the DEA raid, the Court cited that the Commerce Clause gave Congress the authority to prohibit the local use and cultivation of marijuana, despite state law to the contrary. The government argued that “if a single exception was made to the Controlled Substances Act, it would become unenforceable in practice.”

In a rare move, Justice Scalia concurred with the much broader scope of the Commerce Clause in this case and gave the victory to the government agencies and the Attorney General. Scalia and former Chief Justice John Paul Stevens’s agreed that marijuana use fell within the “class of activities” that is of national importance.

SCOTUS’ decision is further explained in this case summary by the ITT Chicago – Kent College of Law; “The majority argued that Congress could ban local marijuana use because it was part of such a ‘class of activities’: the national marijuana market. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use ‘essential’ to regulating the drug’s national market.”

The high court relied heavily on two previous cases, United States v. Lopez, 514 U.S. 549, and United States v. Morrison, 529 U.S. 598, to hold that this separate class of purely local activities was beyond the reach of federal power, according to Cornell University Law School. The Raich concurrence was a surprise to many judicial scholars — especially in the wake of the Lopez and Morrison cases.

Was Scalia Anti-Cannabis?

It was such a divergence from his Originalist interpretations of the Constitution that his flip-flopping on states’ rights vs federal on the Raich had Conservative’s unsure of the Scalia’s stance on one of the biggest, most controversial cases SCOTUS has seen – the Affordable Care Act, or Obamacare. Brian Fitzpatrick, a clerk for Justice Scalia in 2001 and 2002, now a professor at Vanderbilt Law School told the right-leaning news outlet The National Review, “I’m not sure if [Raich] is a one-time blip, and he’ll be back to the more traditional originalist understanding of what the Commerce Clause means.” Fitzpatrick also adds that drugs could be to blame for his Raich decision. “Some people say drugs were involved, and that may have influenced some of the justices.” We will never know if having drugs involved influenced his choice but we do know that Scalia used the narrower scope of the Commerce Clause to dissent on the Affordable Care Act.  

Why did the Justice beloved by Conservatives for his adherence to his interpretation of the original understanding of the Constitution strayed from his Constitutionalist roots in the Raich case?

Mike Cernovich, free speech advocate and lawyer, also points to drugs for the decision.  “In Raich, Scalia did not turn to an original understanding of the Commerce or Necessary and Proper Clauses,” he said, adding that siding with Raich would have resulted in “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.”

“By holding the way he did, Justice Scalia ensured that marijuana will remain illegal for a long time,” Cernovich says. “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.”

SCOTUS and Cannabis

With or without Scalia nationwide legalization is unlikely in the short-term. Currently there are no cannabis or medical marijuana cases on the Supreme Court’s docket, so don’t expect any landmark cannabis legislation in the near future. It could take an act of Congress to legalize cannabis. But this is also highly unlikely with a Republican majority in the House and Senate.

Recently, there has been progress for cannabis reform under the Obama administration. Under Obama, the DEA no longer has the budget to conduct marijuana raids.

The War on Drugs

Scalia’s opposition to states’ rights when it comes to cannabis reforms differs greatly from his critical view of “The War on Drugs”.  Scalia wasn’t a supporter of legalization or medical marijuana.  His ruling on Raich ultimately gave the federal government the basis to prevent the use of medical marijuana and override local laws at the state level. He did speak out on the drug war at a Senate committee hearing back in 2011, six years after his Raich ruling.

In a Senate Judiciary Committee hearing on the role of judges under the Constitution, Senator Lindsey Graham (R-SC) laid a premise of the problems facing American judges. “I would argue that we are creating—because of pay problems, confirmation problems, we are going to gut our judiciary of the best and the brightest if we do not watch our politics and the way we take care of our judges.”

“It is not just the pay. It is also the numerosity, and the numerosity goes back to the laws you pass,” stated Scalia.

Justice Scalia said routine drug cases belong in state courts, which handle the vast majority of trials for most criminal offenses. “I think it was a great mistake to put routine drug offenses into the Federal courts. That is just routine stuff that used to be handled by State courts. If you want excellent Federal judges, you want an elite group, and it is not as elite as it used to be,” he said.

Scalia’s Successor

Bottom line: Scalia was a staunch Originalist and whomever succeeds him on the bench could sway the highest court in the land left or right of the political spectrum.  Republicans like Senate Majority Leader Mitch McConnell (R-KY) do not want the President Obama’s pick to take the bench. The president’s nominee would most certainly face staunch roadblocks in the Republican controlled House and Senate.


Democrats like Senator Elizabeth Warren (D-MA) are fighting back, saying the sitting president has the right to nominate a replacement.


Another option is for Obama to make a recess appointment which it is pretty unlikely, according to the reputable SCOTUS Blog. “The problem… is that less than two years ago, the Supreme Court severely narrowed the flexibility of such temporary appointment power, and strengthened the Senate’s capacity to frustrate such a presidential maneuver,” writes SCOTUS Blog contributor Lyle Denniston.

This vacancy makes the 2016 presidential election arguably the most important election in recent memory. America’s next president will most likely be charged with replacing Conservative Scalia and perhaps the 90-year old liberal-leaning Justice Ruth Bader Ginsberg over his or her four-year term in office. That’s two out of nine life-appointed seats to the court. Now more than ever, it is up to voters to choose how the new administration and SCOTUS will lean politically by choosing the next President of the United States.