MYTHS UP IN SMOKE IN MEDI-MARIJUANA CASE

Monday's decision by the U.S. Supreme Court on a medical-marijuana case
should put to rest several leftist myths about judges.

In a 6-3 decision, the high court ruled that Congress has the power to
override a California law (and, in effect, the law in nine other states)
that allows for marijuana to be used for medical purposes.

What's most interesting here isn't whether the decision was "correct" or
not. Constitutional lawyers will argue about that for years. Instead, the
most instructive aspects of the case involve the unusual voting alignment of
the court's nine justices.

The so-called "liberal" bloc of John Paul Stevens, Ruth Bader Ginsburg,
David Souter and Stephen Breyer was joined by "centrist" Anthony Kennedy
and, in a separate opinion, "conservative" Antonin Scalia, to say that the
federal government can prosecute medical marijuana users even if state laws
allow certain uses.

"Centrist" Sandra Day O'Connor wrote the main dissenting opinion, joined in
part by "conservatives" William Rehnquist and Clarence Thomas -- the latter
of whom also wrote a separate dissent.

Leftist myths proved wrong by this opinion are:

. Political ideology is the overriding factor that influences judges'
decisions.

The quotation marks around the political categorizations in the above
paragraphs are there for a reason: because in the case of judges, those
categories are often irrelevant.

In this case, the liberal justices' opinion clearly showed that their policy
sympathies lie with the seriously ill California women who use marijuana,
upon doctors' advice, to control pain.

In other words, those justices support the California law that allows for
such marijuana use. Nevertheless, they said the women still could be
prosecuted under federal law. Their reading of the Constitution is that it
gives Congress more power than state governments on such matters.

In the main dissenting opinion, on the other hand, Justice O'Connor wrote
that she disapproved of the California law -- but her reading of the
Constitution is that state governments, not Congress, have more power on
such matters.

In short, justices on both sides of the decision ruled in direct
contradiction to their own political preferences. What matters is less their
politics than their interpretation of what the existing laws mean.

All of which shows how wrong it is for today's Senate Democrats to follow
the lead of New York's Charles Schumer, who in 2001 first argued that
judicial nominees should be blocked on the basis of ideology alone, even if
their qualifications and integrity are first-rate. Most of the Senate fights
over judicial nominees stem from this misguided, leftist attempt to turn
political ideology into a litmus test.

. Conservative judges are intent on imposing their own morality on other
people.

Social conservatives are usually associated with being far more eager to
back strict anti-drug laws than are liberals. Yet two of the three most
conservative members of the court, Justices Rehnquist and Thomas, came down
on the side whose effect would be to liberalize marijuana laws.

Again, legal positions and political positions can be entirely different
things. Not only that, but many if not most conservatives are traditionalist
(in terms of morality) and libertarian (in terms of the law) at the same
time. To suggest that a nominee who admires Justices Thomas or Rehnquist
will automatically strive to impose moral strictures on society is to show a
lack of understanding of the conservative mind.

. Justice Thomas is a mere clone of, or even a puppet of, Justice Scalia.

Learned studies from left, right and center disposed of this myth long ago,
but the myth still persists among many media pundits, and thus in the mind
of the general public.

The truth is that the two justices have highly independent, top-flight
minds. That truth is nowhere more evident than in the medical marijuana
case, where Justice Scalia's concurrence and Justice Thomas' separate
dissent read like a high-stakes intellectual duel.

"The Court has repeatedly recognized," wrote Justice Scalia, "that ...
Congress may regulate private endeavors even when that regulation may
pre-empt express state-law determinations ..."

Replied Justice Thomas: "If the Supreme Court's majority is to be taken
seriously" in its expansive views of congressional power, "the federal
government may now regulate quilting bees, clothes drives and potluck
suppers throughout the 50 states."

Justice Thomas argued that the Constitution gives Congress no such power
over potluck suppers -- or state-approved medical marijuana.

. Conservative judges in general march in lockstep more often than liberal
judges.

In this case, as in many, many others, it is the four liberal justices who
slavishly stick together, while the conservatives hold each other
accountable with intellectual rigor. The Thomas-Scalia debate is but one
example of the ongoing, open-minded constitutional jousting among those two
and Chief Justice Rehnquist (and right-leaning centrist Justice O'Connor).

Lessons: Much of what Sens. Schumer and Ted Kennedy say about the courts,
and much of what the pundits echo, is wrong. Constitutional law was never
meant to be reduced to mere politics via other means. Which is why the
left's smearing of judicial nominees such as Robert Bork, Clarence Thomas,
Priscilla Owen and Mobile's Bill Pryor is so misguided as to be completely
out of bounds.