Pouting Thomas

Have I mentioned that I love Justice Thomas lately?? The MSM seems to be reporting that Thomas predictably dissented in yesterday's Gonzalez v. Oregon decision thereby proving his devotion to Scalia'esque nanny-state moral conservatism. Well, perhaps they should try reading his opinion...; but, I suppose that would involve too much work in the form of actual self-guided analysis. See Jacob Sullum's Reason piece for a quick reflection here.

In his opinion, Thomas is obviously sticking his thumb in the eyes of his fellow Justices by abiding by their abysmal majority decision in Raich and simultaneously pointing out their obvious contradictions in the process. Thomas asserts:

The majority's newfound understanding of the CSA as a statute of limited reach is all the more puzzling because it rests upon constitutional principles that the majority of the Court rejected in Raich. Notwithstanding the States' "traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens," the Raich majority concluded that the CSA applied to the intrastate possession of marijuana for medicinal purposes authorized by California law because "Congress could have rationally" concluded that such an application was necessary to the regulation of the "larger interstate marijuana market..."

I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure....But that is now water over the dam...

In other words, what the hell do you people really believe?? It also seems that the suicide-advocates in the case, perhaps intentionally, missed an opportunity here by failing to address the potential unconstitutionality of the CSA. Both Thomas and Scalia go out of their way to point out that the question of constitutionality was not before the court. Too bad. It would have been interesting to see what the plurality would have looked like in such a scenario. Would Kennedy and the Raich majority sustain the constitutionality of the CSA under the Article I commerce power and still limit its reach? Would Scalia again show himself to be a fair weather federalist on issues that test his religious views? Although O'Connor appears to be only consistent voice looking solely at the vote tally, I think that once Thomas saw the inevitability of the pro-federalist outcome, he jumped on the opportunity to show the hypocrisy of his colleagues. Very nice.