Pondering Judicial Ideology

Here is an exercise regarding judicial decision-making and ideology.  The Commerce Clause in the Constitution grants the federal government the power to “regulate commerce among the several states….”  In a series of decisions from the New Deal in the 1930’s to the Civil Rights era of the early 1960’s, the Supreme Court has interpreted the Commerce Clause power so as to confer a very expansive power on Congress to regulate even very local activity.

However, in U.S. v. Lopez (1995) the Supreme Court took a very restrictive view of the Commerce Clause. Putting a halt to 50 years of expansive Commerce Clause interpretations, the court struck down the federal government’s attempt to ban guns from schools.  The court said:

To uphold the government’s contention here, we would have to pile inference upon inference in a manner that would bid fair to convert Congressional authority under the Commerce Clause to a general police power of the sort retained by the states. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in those opinions has suggested the possibility of further expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local.  This we are unwilling to do.

Ten years later, in Gonzales v. Raich, the same court (with no turnover in personnel) took a very expansionist view of the Commerce Clause in upholding the power of the federal government to regulate marijuana sale, use and possession, even in the face of legalization by the State of California and even applying to a plaintiff who grew her own medicinal marijuana in her own house. The Court relied heavily on the 1942 decision in Wickard v. Filburn where the federal government was allowed to control the quantity of wheat grown by farmers – even wheat that was sewn, harvested and used on the farmer’s own 11 acres. This is one of the decisions that was soundly rejected in Lopez.  Indeed, in oral argument in Raich, Justice Scalia said, “I always used to laugh at Wickard.” Yet, in his concurring opinion, he relies upon it.

Let’s take a look at the votes in each case:

Lopez:

5 justices in favor of restricted federal power: Kennedy, O’Connor, Rhenquist, Scalia and Thomas

4 justices in favor of more expansive power: Breyer, Ginsburg, Stevens, Souter

Raich:

3 justices in favor of restricted federal power: O’Connor, Rhenquist, Thomas

6 justices in favor of more expansive power: Breyer, Ginsburg, Kennedy, Scalia, Stevens and Souter

So, what’s going on here? Can the two decisions be reconciled on judicial ideology of expansive vs. restrictive federal powers?  Or is there a social conservativism expressed by the Kennedy and Scalia switch when it comes to smoking pot?  If this is true, is it possible that a judge’s social preferences may color his or her law-making? Is “the rule of law” shaped by a judge’s law of social rules?