JUSTICES AREN'T ALWAYS PREDICTABLE

WASHINGTON - Consider the recent case arising from the destruction, by
agents of the Drug Enforcement Agency, of Diane Monson's home-grown
marijuana plants, a case about which the Supreme Court's two
most conservative justices, Antonin Scalia and Clarence Thomas, disagreed.

Monson, and another woman using home-grown marijuana recommended by her
doctors, sought an injunction against enforcement of the federal Controlled
Substances Act. Both said they had a right to their plants under
California's Compassionate Use Act. Passed overwhelmingly by referendum in
1996, that act allows marijuana use by individuals whose doctors recommend
it for the relief of pain or nausea. But this law - 10 other states have
similar ones - runs contrary to the federal statute.

The two women argued that the private use of home-grown marijuana has
nothing to do with interstate commerce, hence Congress has no
constitutional power to regulate it. Monday the Supreme Court disagreed.
In a 6-3 ruling, it held that Congress' claim to exclusive regulatory
authority over drugs, legal and illegal, fell well within its
constitutional power to regulate interstate commerce. Writing for Monday's
majority, Justice John Paul Stevens, perhaps the most liberal justice, was
joined by Justices Stephen Breyer, David Souter, Ruth Bader Ginsburg and
Anthony Kennedy. Scalia concurred separately. Stevens said that one does
not need "a degree in economics to understand why a nationwide exemption"
for large quantities of marijuana cultivated for personal use could have a
"substantial impact on the interstate market" for a commodity that Congress
aims to "conquer."

Scalia, responding to the two women's and the court minority's invocation
of states' sovereignty, cited a previous court ruling that Congress may
regulate even when its regulation "may pre-empt express state-law
determinations contrary to the result which has commended itself to the
collective wisdom of Congress." Justice Sandra Day O'Connor dissented,
echoing Justice Louis Brandeis' judgment that federalism is supposed to
allow a single state to be a "laboratory" to "try novel social and
economic experiments without risk to the rest of the country." She was
joined by Chief Justice William Rehnquist, who wrote the court's opinion
in a 1995 case in which the court overturned, as an invalid exercise of
the power to regulate commerce, a federal law regulating the possession of
guns near schools.

Thomas, the justice least respectful of precedents, joined O'Connor's
dissent and also dissented separately, disregarding many precedents giving
almost infinite elasticity to the Commerce Clause. He said that the women's
marijuana was never bought or sold, never crossed state lines and had no
"demonstrable" effect on the national market for marijuana, adding, "If
Congress can regulate this ... then it can regulate virtually anything"
including "quilting bees .. and potluck suppers," and creating a federal
government that is "no longer one of limited and enumerated powers."

In Monday's decision, which of the justices were liberal, which were
conservative? Which exemplified judicial activism, which exemplified
restraint? Such judgments are not as easy as many suppose.