In the process of reading this, like most cases in the last fifty years, too long opinion. Just from Stevens's introduction, I'd have to say the majority is wrong. Wickard v. Filburn was simply wrong. The wheat grown was not in commerce, the pot is not in commerce... You cannot stretch the commerce clause to cover it which was why the court wouldn't go for it in Lopez. Lopez was not a federalism case though like this one, so this case is doubly harmful if indeed I cannot be persuaded by my guiding jurisprudential light Scalia. When he spoke at school here in April he said he was resigned to the broadened commerce clause insofar as it was actually commerce not just guns around schools for instance.
While we like Lochner economics, Lochner was perhaps wrongly decided according to a federalist view and especially according to a restrained judicial view. Holmes dissented I believe in Lochner, claiming the state legislatures can debate economic questions and judges should not necessarily. So we must be aware that judicial activism in favor of our policy preferences is wrong as well. It simply is not the role of the judiciary. Scalia would certainly agree. Thomas seems willing to be activist at times, at least in the sense of overturning precedent, to right what he sees as wrongs. Scalia, however, is more constrained by stare decisis.
