Justice Anthony M. Kennedy’s role in Monday’s 6-3 decision in Gonzales v. Raich, upholding sweeping power for Congress to criminalize even personal, medical use of marijuana, may be baffling from the perspective of his accustomed role in supporting state power against overreaching congressional legislation. But there is perhaps a different, and simpler, explanation for his vote with the majority (his silent vote, as Ann Althouse points out in her post below). Kennedy, it has been clear for some time, has little tolerance, judicial or otherwise, for those who are users of drugs, or who resist drug control measures.

Three fairly recent examples suggest that the Justice has a zero-tolerance point of view.

Two are other “silent” votes he has cast: joining the opinion written by Justice Clarence Thomas in U.S. v. Oakland Cannabis Buyers’ Cooperative, decided May 14, 2001, finding no medical necessity exception to the Controlled Substances Act, and joining Thomas’ 6-3 opinion in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, decided June 27, 2002, upholding the most sweeping drug-testing policy yet to come before the Court — a testing requirement for any public school student seeking to take part in any extracurricular activity, the near-equivalent of a universal testing policy.

The third example is perhaps the most telling: when the Earls case came before the Court, there was evidence that the young woman who challenged the policy, Lindsay Earls, had never used drugs herself. But that did not deter Kennedy at the oral argument on March 19, 2002. Turning red, he told Ms. Earls’ attorney: “No parent would send their child to a ‘druggie’ school, except perhaps your client.” He likened a drug test to a rule requiring students to wear a school uniform. With evident sarcasm, he also remarked: “It is hardly a revelation that the government is concerned about drugs among our youth. This is not exactly rocket science.”

Perhaps there are some sacrifices of federalism doctrine the Justice is willing to make, as he may have done on Monday.

A HELPFUL COMMENT FROM PROFESSOR PAM KARLAN:
And remember also, Lyle, how Kennedy treated drugs in his concurrence in the eighth amendment proportionality case, Harmelin v. Michigan, 501 U.S. 957 (1991), where he suggests drug crimes can never really be thought minor enough to get to the second and third prongs of the Solem test since drugs can cause physical, mental, or emotional changes that might make it more likely that a user would commit serious and violent crimes; that drug users might commit property crime in order to finance their purchase of drugs; and that the drug trade involves violent crime.

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