This essay first appeared in the July 14, 2021 Epoch Times.
“Clarence Thomas says federal laws against marijuana may no longer be necessary!” blared the headline on the June 29, 2021, NBC News story. The item continued, “Clarence Thomas, one of the Supreme Court’s most conservative justices, said Monday that because of the hodgepodge of federal policies on marijuana, federal laws against its use or cultivation may no longer make sense.”
Wow! The Supreme Court’s most conservative justice says it’s time to legalize pot!
But the story was false. Thomas isn’t a “conservative justice;” he’s an originalist. Nor did he state that federal anti-marijuana laws “no longer make sense.” Rather, he wrote that under the Supreme Court’s 2005 decision in Gonzales v. Raich (pdf), some local applications of federal law may no longer be constitutional.
Gonzales v. Raich upheld a federal prohibition of medical marijuana against users who act wholly within their state and in conformity with their state’s law. The majority of the justices said that under the Constitution’s Necessary and Proper Clause, the in-state ban was incidental to how Congress had exercised its power to regulate interstate commerce. (In the Necessary and Proper Clause, the word “necessary” has the technical meaning of “incidental.”) The majority ruled that the in-state ban was a critical part of Congress’s broad and consistent purpose.
Of course, if Thomas were merely a “conservative justice,” he would have enthusiastically joined the majority: In 2005 nearly all conservatives favored keeping marijuana illegal. Justice Antonin Scalia, who was less originalist and more conservative, did join the majority. But Thomas is committed to applying the Constitution as the Founders understood it—even when it produces liberal results. So he dissented.
Fast forward to 2021. Colorado law now allows marijuana retailing but federal law still does not. A Colorado retailer asked the courts to address the legal tangle of conflicting rules. A federal appeals tribunal decided against him. He then sought Supreme Court review. SCOTUS refused (pdf).
Thomas issued a separate statement. He pointed out that because federal officials no longer pursue a consistent marijuana policy, much of the reasoning of the Gonzales case no longer applies. Contrary to NBC disinformation, Thomas said nothing about whether anti-marijuana laws “made sense” or were good or bad
This incident exemplifies how the mainstream media have been transmogrified from outfits merely liberal into leftist propaganda machines. NBC mislabeled Thomas as a conservative, failed to mention his originalism, grossly distorted his reasoning, and falsely proclaimed that a prominent conservative has enlisted in the drug legalization brigade.
Mainstream media propaganda usually follows a party line consistent across all outlets. One current line about the Supreme Court is that it has a 6–3 conservative majority.
This year, as last year, the court’s actual decisions didn’t match the party line. But the media haven’t changed the narrative; they’ve scrambled to shore it up.
For example, National Public Radio said the court issued liberal decisions because it was trying to preserve consensus and its own reputation. Politico claimed the justices “shrink from controversy” so they “held back a bit this term.” (Implicit in these statements is that conservative rulings are controversial and reputation-damaging, but liberal decisions are not.)
USA Today’s explanation was that the justices “appeared to rise above partisan strife.” (If you decide a case in a manner the left doesn’t like, you are guilty of fomenting “partisan strife.”)
The Guardian opined that “the dominant rightwing cadre might be biding their time.” Slate asserted the “six conservatives” merely “laid the groundwork for the devastation to come.” (One can only hope!)
And the New York Times somberly instructed us that the liberal decisions came because the “conservative majority” is “in flux.”
You can sweep away these rationalizations because they are all rubbish. The simplest explanation for the court’s liberal decisions is the correct one: the “6–3 conservative majority” does not exist. I pointed this out in a previous essay, and since I wrote that essay the court has issued more cases confirming it.
Statistics tell part of the story. According to SCOTUS Blog, the most liberal member of the court, Sonya Sotomayor, was in the majority 69 percent of the time. The entire activist liberal bloc of Sotomayor, Breyer, and Kagan was in the majority in 13 of the 28 split decisions.
The rest of the story surfaces when you unravel the decisions one by one:
First: The Roberts court is continuing the liberal judicial activist trend of “defining deviancy down”—a phrase coined by the late Sen. Daniel Patrick Moynihan (D-N.Y.). The justices refused to review a state law forcing a religious businesswoman to use her creative talents to celebrate same-sex marriage (pdf). It left undisturbed a lower court ruling that a school was constitutionally required to allow a biological girl to use the boys’ restroom (pdf). When school administrators sanctioned a 14-year-old pupil for lobbing repeated f-bombs, the court sided with the young vulgarian against the school (pdf).
Second: The cases show that the Roberts court is committed to the case precedents through which the liberal 20th century justices re-wrote the Constitution. You can see this even in the “conservative” victories. For example, the donor privacy decision in Americans for Prosperity Foundation v. Bonta (pdf) relied heavily on cases and methods dating from the years when the court’s liberal activism was at its peak.
Third: This term’s liberal victories (especially the Obamacare decision) seem fairly permanent, but some of the conservative victories may be transitory. The case upholding an Arizona election integrity law (pdf) is accounted a conservative victory—but because it involved only a statute and not the Constitution, Congress can overrule it at any time.
Fulton v. Philadelphia (pdf), also celebrated as a conservative victory, was even more flimsy. In Fulton, the court held that the city of Philadelphia violated the First Amendment rights of religious charities. As Justice Neil Gorsuch pointed out, however, the decision was so narrowly based that if Philadelphia removes a never-used clause from its official paperwork, it may continue to discriminate.
Cedar Point v. Hassid (pdf) is accounted a conservative victory because it held that if a state requires a farmer to allow union organizers to enter his land, the state must pay compensation. Left-leaning outlet Slate Magazine mis-characterized Cedar Point as an outrageous union busting decision imposed by “the court’s conservative supermajority.” In fact, as Justice Stephen Breyer suggested in dissent, it’s easily reversible. If the landowner is paid a small judicially fixed admission fee, union entry can continue as before.
I should add that whatever comfort property owners take from Cedar Point is offset by a later decision refusing to protect a property owner from the city of Chicago’s abuse of the eminent domain process (pdf).
The 50-year-long conservative/Republican project to reform the Supreme Court clearly has failed. It’s time to resume it on another battlefield. More on that in a future essay.