The Wrong Way to Read Raich, or, Defending Scalia

I've been meaning to criticize this Kos post for a day or so. In it, Kos points to Justice Scalia's vote in the medicinal marijuana case, Gonzalez v. Raich, as a sign of Scalia's political hackery. Kos apparently interprets Scalia's vote in favor of federal power in this case as hypocritical, given Scalia's pro-states' rights votes in federalism cases in the past. He seems to think that Scalia's vote was based solely on his views re: medicinal marijuana.

That seems like a really uncharitable reading of Scalia here. I mean, this case has always seemed to me to be an "easy case," governed by commerce clause precedents. Now a few members of the Court (ahem, Thomas, ahem) appear to have been willing to revisit those precedents, but Justice Scalia, like 5 other members of the Court, weren't. Is that hackery? I mean, haven't we all read Wickard v. Filburn?

As one of my students said in an email, he thought Justice Stevens's lead opinion was boring. How wouldn't it be, given that this case was governed by sixty year-old precedents that undergraduates read? And, solely as a matter of law, Scalia's vote was the right one in this case; Congress clearly has the right to legislate here.

Now one could criticize a particular justice's selective use of stare decisis, in theory. But one would have to look at more than one vote in one case to do that, and I'm not sure that any of the justices stand out, particularly, in this context.

(Disclaimer: I haven't read the opinions in Raich, yet.)