September 15, 2005


Cathy Young refers at length to this column of mine in the October Reason (not yet online)-- and in the process, I'm afraid, she makes a glaring factual error. Discussing Gonzales v. Raich, she writes

You could easily conclude that Scalia is a hypocrite willing to cast his principles of limited government aside in order to further his anti-drug social agenda. Writing in The American Spectator, John Tabin offers a different theory. Tabin points to a 2001 case, Kyllo v. United States, in which Scalia wrote the majority opinion siding with a convicted marijuana grower who conteded that drug agents had engaged in an illeagal search by using a thermal imaging device to determine that the heat emanating from his home was consistent with high-intensity lamps typically used for indoor marijuana cultivation. Tabin believes Scalia's Raich opinion stems not from an animus against drugs but from excessive respect for judicial precedent, and the belief that it should not be overturned without an extremely compelling reason.

A rival explanation is that in Kyllo the violation of the defendant's rights was too plain to deny. (Stevens was the sole dissenter.)

This is simply incorrect. Kyllo was decided 5-4; Rehnquist, O'Connor, and Kennedy joined Stevens's dissent. But since she goes on to more or less restate, with attribution, my critique of Scalia's approach to stare decisis, it's hard to be too upset.

Posted by John Tabin at September 15, 2005 04:15 PM