Supreme Court Justice Antonin Scalia surprised
more than a few legal observers back in 2005 when he sided with the
liberal majority in Gonzales
v. Raich and voted to affirm Congress’ authority under the
Commerce Clause to outlaw medical marijuana that had been legalized
by the state of California. It was a surprise because in the
previous decade Scalia had voted to limit the scope of
congressional interstate commerce power in two major cases,

U.S. v. Lopez (1995) and U.S. v.
Morrison (2000), and was therefore seen as a fairly solid
vote for federalism and against overreaching congressional
power.

Yet not only did Scalia side with the federal government in the
medical marijuana case, he took the opportunity to say a few kind
words about
Wickard v. Filburn (1942), the New Deal era ruling
where the Supreme Court famously—some might say infamously—allowed
the federal government to regulate wheat that had been cultivated
and consumed entirely on one man’s farm under Congress’ power to
“regulate commerce…among the several states.” “The potential
disruption of Congress’s interstate regulation,” Scalia wrote of
Wickard, “and not only the effect that personal
consumption of wheat had on interstate commerce, justified
Congress’s regulation.”

Scalia was roundly criticized by libertarian and conservative
legal experts for this decision—and rightfully so. Neither
Wickard nor Raich demonstrated much respect for
the original
meaning of the Commerce Clause, and Scalia is of course
typically a great advocate of constitutional originalism. (Nor is
this the only time Scalia has
put the brakes on his originalism.)

But perhaps Scalia has done a little more thinking on the
subject in the intervening years. As Adam Liptak of The New
York Times
reported earlier this week, in Scalia’s forthcoming book

Reading Law: The Interpretation of Legal Texts
(co-written with Bryan A. Garner), the conservative justice offers
a decidedly negative take on that landmark New Deal decision. As
Liptak notes:

Justice Scalia writes, for instance, that he has little use for
a central precedent the Obama administration has cited to justify
the health care law under the Constitution’s commerce clause,
Wickard v. Filburn.

In that 1942 decision, Justice Scalia writes, the Supreme Court
“expanded the Commerce Clause beyond all reason” by ruling that “a
farmer’s cultivation of wheat for his own consumption affected
interstate commerce and thus could be regulated under the Commerce
Clause.”…

Justice Scalia’s treatment of the Wickard case had been far more
respectful in his judicial writings. In the book’s preface, he
explains (referring to himself in the third person) that he “knows
that there are some, and fears that there may be many, opinions
that he has joined or written over the past 30 years that
contradict what is written here.” Some inconsistencies can be
explained by respect for precedent, he writes, others “because
wisdom has come late.”

You know what they say: Better late than never.

As for the question of what this news means for Scalia’s vote in
the looming ObamaCare decision, I wouldn’t call it a game-changer.
As I explained shortly before the Court heard oral arguments in the
health care case, there was
already good reason to think Scalia would vote against
ObamaCare’s individual mandate. And since there’s
zero chance the Supreme Court is going to overturn
Wickard as part of its health care ruling, Scalia’s new
hostility to that case only figures in as a sort of background
influence.

While it is nice to hear that Scalia finally agrees with the
originalist consensus on Wickard, that fact alone doesn’t
really tell us anything we didn’t already know about his likely
approach to ObamaCare.