Justice Scalia's Consistency on Federalism

Big news today in the legal world, as the U.S. Supreme Court ruled 6 - 3 to allow federal criminal prosecution against the use and cultivation of medical marijuana in Gonzales v. Raich. The usual suspects (J. Breyer, J. Souter, J. Ginsburg, J. Stevens) and Justice Kennedy joined the majority opinion of Justice Stevens upholding the law. Justice Scalia concurred. Dissenting were Chief Justice Rehnquist, Justice Thomas, and Justice O'Connor.

Professor Ann Althouse takes a crack at defending Justice Scalia, here. For those not in the know, Justice Scalia is often labelled as a big proponent of states' rights, and thus him supporting federal regulation of something decidedly health and safety comes to some as a surprise. Althouse does a great job illustrating how Scalia can be consistent here with a prior, pro-federalism decision in U.S. v. Lopez. Althouse also has a later post criticizing Justice Kennedy for failing to explain how he could join the majority here, compared to his opinion in Lopez.

Finally, an interesting point is made, here, by David Bernstein of The Volokh Conspiracy:

I was both amused and angered by Justice Stevens's paean to the democratic process as the appropriate avenue of relief for advocates of medical marijuana at the end of his opinion. Every Justice who joined Stevens's opinion voted to prohibit states from regulating homosexual sex in Lawrence and [if they were on the Court at the time] voted to limit the government's power to regulate abortion in Casey. Why was the democratic process not the appropriate avenue of relief for the victims of overzealous government regulation in those cases? It seems we do to some extent live under a system where the personal preferences of the Justices, having nothing to do with the history, text, or logic of the Constitution, dictate when the Supreme Court will or will not intervene to overturn particular regulations.