Friday, June 10, 2005

Lap Dogs Stepping Out

It has been often repeated that Prime Minister Tony Blair is merely President Bush's poodle, following him into Iraq as if on a leash. This unfair criticism of Blair should have been dispelled by this week's visit to Washington, where Blair was the one showing leadership on the issues of aid to Africa and global climate change. Unfortunately, the President isn't following where the Prime Minister is leading on those issues. While the President has demonstrated some amount of his own leadership on African aid (particularly around AIDS, albeit somewhat hamstrung by the demands of his conservative Christian base), his response on the issue of climate change continues to be benighted, hiding behind "scientific" uncertainty as an excuse for taking no action.

Meanwhile, Justice Clarence Thomas, who has been viewed by many as Justice Scalia's poodle, also stepped out this week. I believe Andrew Sullivan used the expression that Thomas "carries water for" Scalia, but I don't think that really captures it, since it has generally been Scalia who does the work of writing opinions, with Thomas being a "me too" concurrence. (Scalia's clerks probably have a Microsoft Word template with "Justice Scalia, with whom Justice Thomas joins, dissenting" already filled in.) However, in this week's Gonzales vs. Raich decision on medical marijuana, Scalia found himself oddly in agreement with all of the "liberal" judges (though he wrote a separate concurring opinion), while Thomas disagreed head on with Scalia, and meticulously addressed Scalia's argument in his own separate dissenting opinion. Ironically (or perhaps pointedly), Thomas' dissent reads like a typical Scalia dissent, thorough, and even peppered with acerbic comments (e.g., "If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States.").

Personally, I think Justice Thomas (as well as O'Connor and Rehnquist) are on the right side of this one. As Thomas writes, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers." In an interesting commentary, George Will observes that the usual labels of "liberal" and "conservative" or "judicial activism" and "judicial restraint" are particularly confounded by the court's split on Raich. It's interesting to see the philosophy come out in the various opinions. Justice Thomas is from the "originalist" school, and his opinion is primarily grounded in the meaning of the Commerce Clause, and the philosophical motivations of the Founders (e.g., that the federal government has only enumerated powers). Justice O'Connor's opinion is thoroughly grounded in precedent (and she had to jump through some legal hoops to explain why it was okay for Congress to regulate an Ohio farmer inconsuming his own home-grown wheat, but it was not okay for Congress to regulate a California patient in consuming her own home-grown pot). Justice Scalia argues that "The relevant question is simply whether the means chosen are 'reasonably adapted' to the attainment of a legitimate end". Indeed, one might suspect that the ends justifying the means is Scalia's true philosophy, and that he works backwards from his desired outcome to finding supporting argument, rather than working forward from principles to a conclusion. (So does that make him an "activist judge"?) In any event, Justice Thomas carries no one's water but his own this week.

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