Tilted Forum Project Discussion Community - View Single Post - Where's this "liberal court" the Right says exists?

dy156 · 06-07-2005, 09:59 PM

Scalia is still my favorite Justice, just because he's fun, but don't doubt for an instant that this was not an entirely political move on his part. He's gunning for the Chief Justice nomination, and is plenty crafty.

In his concurring opinion, he was able to:
1. make the more "liberal" justices look like they were not following the law as well as he did, or would have.
2. provide soccer-mom-supported Senators from, say, Oklahoma that are very Republican but not principle-based conservatives cover for voting for him by siding with the outlawing-drugs-because-drugs-are-bad crew.
3. appeal to Bush --see point 2., above.
4. Distance himself from the "arch conservatives" Rehnquist and Thomas percieved by some as on the fringe right, and potentially embarassing to Bush who doesn't want another huge fight in the Senate.

Scalia easily could have picked apart and demolished the majority, had he chosen to do so. I'm not saying it would be easy, or that I could, but Scalia (and his top of the nation law clerks) could have. Well, I might have been able to come up with an outline, just don't feel like putting forth that much effort, especially late at night. (On second thought, he could have just issued one of his " Come on, people, this is rediculous and totally absurd" opinions without a detailed roadmap or outline.)

Other thoughts;
-Thanks for those links. I'd read this story but was curious to really delve into it, but did not want to waste alot of time searching for the opinions. I appreciate it.
-Should we be surprised that the more "liberal" justices were trying to play against type, but were actually ruling that the Federal Government has the power to make decisions? uhm.. No.
-j8ear seems very well informed.
-With all due respect to Rush Limbaugh, he's wrong. Quite often I come to the same conclusions as he does, but a very different logical progression leads me there. Though the majority mentioned the Wickard v Fillburn case, Scalia was actually using that train of thought to flesh out the majority's opinion more than the majority did. Limbaugh gives the majority too much credit.
Scalia said that the Congress has the power to regulate Interstate Commerce, and to legislate broadly to effectuate that power through the necessary and proper clause. Congress passed a great big controlled substances package, and to do so, it had to regulate everything about controlled substances, including the use of marijuana even by sick people growing it in California. Similarly, in the 1930s, Congress legislated the sale of grain commodities, and to do so, had to regulate everything about the sale and price of grain commodities, which affected this one farmer who was just growing grain for himself.
On the other hand, Congress did not pass a major this-is-where-you-can-sell-and-have-guns-and-where-you-can't package, it just said that you can't have them near schools. This had nothing to do with interstate commerce, and it was at an opportune time for Rehnquist to check the Congress. Thus, Lopez threw out that law as an overstepping of Congressional authority under the commerce clause.

This ruling sucks, and I bet those that have said Congress will not follow the "instructions" in the case are right, for now, but I really think that in the long run this decision will be a turning point in, well, marijuana history. Either it will be the catalyst for those that are willing to look at the issue for the first time in a way that they have not and would not, despite the slowly growing number of state referendums, or it will be the death knell for acceptence of marijuana.

06-07-2005, 09:59 PM	#31 (permalink)
dy156 cookie Location: in the backwoods	Scalia is still my favorite Justice, just because he's fun, but don't doubt for an instant that this was not an entirely political move on his part. He's gunning for the Chief Justice nomination, and is plenty crafty. In his concurring opinion, he was able to: 1. make the more "liberal" justices look like they were not following the law as well as he did, or would have. 2. provide soccer-mom-supported Senators from, say, Oklahoma that are very Republican but not principle-based conservatives cover for voting for him by siding with the outlawing-drugs-because-drugs-are-bad crew. 3. appeal to Bush --see point 2., above. 4. Distance himself from the "arch conservatives" Rehnquist and Thomas percieved by some as on the fringe right, and potentially embarassing to Bush who doesn't want another huge fight in the Senate. Scalia easily could have picked apart and demolished the majority, had he chosen to do so. I'm not saying it would be easy, or that I could, but Scalia (and his top of the nation law clerks) could have. Well, I might have been able to come up with an outline, just don't feel like putting forth that much effort, especially late at night. (On second thought, he could have just issued one of his " Come on, people, this is rediculous and totally absurd" opinions without a detailed roadmap or outline.) Other thoughts; -Thanks for those links. I'd read this story but was curious to really delve into it, but did not want to waste alot of time searching for the opinions. I appreciate it. -Should we be surprised that the more "liberal" justices were trying to play against type, but were actually ruling that the Federal Government has the power to make decisions? uhm.. No. -j8ear seems very well informed. -With all due respect to Rush Limbaugh, he's wrong. Quite often I come to the same conclusions as he does, but a very different logical progression leads me there. Though the majority mentioned the Wickard v Fillburn case, Scalia was actually using that train of thought to flesh out the majority's opinion more than the majority did. Limbaugh gives the majority too much credit. Scalia said that the Congress has the power to regulate Interstate Commerce, and to legislate broadly to effectuate that power through the necessary and proper clause. Congress passed a great big controlled substances package, and to do so, it had to regulate everything about controlled substances, including the use of marijuana even by sick people growing it in California. Similarly, in the 1930s, Congress legislated the sale of grain commodities, and to do so, had to regulate everything about the sale and price of grain commodities, which affected this one farmer who was just growing grain for himself. On the other hand, Congress did not pass a major this-is-where-you-can-sell-and-have-guns-and-where-you-can't package, it just said that you can't have them near schools. This had nothing to do with interstate commerce, and it was at an opportune time for Rehnquist to check the Congress. Thus, Lopez threw out that law as an overstepping of Congressional authority under the commerce clause. This ruling sucks, and I bet those that have said Congress will not follow the "instructions" in the case are right, for now, but I really think that in the long run this decision will be a turning point in, well, marijuana history. Either it will be the catalyst for those that are willing to look at the issue for the first time in a way that they have not and would not, despite the slowly growing number of state referendums, or it will be the death knell for acceptence of marijuana.