Oh what a lost opportunity for conservatives! If only Raich had gone the other way!
Imagine this. Raich wins. Voting to let very, very sick people smoke pot: Thomas, O'Connor, Rehnquist, Scalia and Kennedy. Voting to stop very, very sick people from smoking pot: Ginsburg, Breyer, Souter and Stevens.
Think about that for a minute in the context of what is currently going on in the Senate and the MSM regarding Bush's judicial nominees. Think, for a minute, about the text of one of Ted Kennedy's rampages about them. Think, if you will, about any story in the New York Times about, say, William Pryor.
Liberals, the main stream media, university professors, and the like, currently tend to conflate any potential jurist appointed by Bush with a Bible thumping, god fearing monster, who is completely at the mercy of his conservative political agenda.
On the other hand, conservatives who understand the law tend to view those same appointees in terms of their judicial philosophy, not their political philosophy. They point out that it is possible to carry out the law of the land without regard to one's own moral or political beliefs. This has been especially true for Pryor, who has been on record as saying that Roe is a travesty, but is willing to uphold the law of the land.
Now, it is the case that the application of conservative judicial philosophy has tended to produce opinions that concur with conservative moral and political sensibilities. Allowing limitations on abortions, Morrison and Lopez come to mind, but there are many, many others.
In Raich, however, we had a case where the outcome, had it gone as I outlined above, would have been completely at odds with standard, Bible thumping moral and policital sensibilities. Conservatives hate drugs, right?!
So what were the conservatives (Thomas!) doing voting to let people take drugs, when all the liberals on the court voted to make it illegal?! The answer, my friend, is that in this case, the judicial philosophy of the justices were at odds with, and in some cases trumped, the moral and political philosophies of those same jurists.
Forevermore, if Raich had won, every time someone quoted one of Ted Kennedy's speeches about a judicial appointee wanting to turn back the clock on civil rights, or make women second-class citizens, or trod on the already down-trodden, by using the bench to execute their political philosophies, we could say:
"Wait a minute, if conservative jurists are simply using the bench to implement their political philosophies, then what about Raich?"
But it didn't happen. Scalia and Kennedy folded. Scalia folded, apparently, because he viewed federal legislation as being "necessary and proper" to the administration of interstate commerce (of marijuana), as opposed to, say, the issues in Morrison and Lopez. I don't buy it. Kennedy just chickened out, and a pox on him. Well, a pox on both him and Scalia.