Associate Justice Sandra Day O’Connor is retiring from the Supreme Court. “‘If anyone up there [on the Supreme Court] could have been tagged pro-business, O’Connor would have been the one,’ said Christopher Landau, a former clerk and now a partner at Kirkland & Ellis, LLP,” The Washington Post reported (July 2, 2005, p. A14).

In one of her last opinions, a dissent, O’Connor supported the claims of two medical marijuana patients, Angel Raich and Diane Monson, who sued the Attorney General to block the Justice Department from applying the Controlled Substances Act to them for the marijuana that they grew and that was grown for them (Gonzales v. Raich, No. 03-1454, 2005). 

That marijuana, it was stipulated, was grown only in California in a way that did not affect interstate commerce, and was grown in compliance with California’s medical marijuana law.  Raich and Monson challenged the Act by arguing that Congress’ power to regulate commerce “among the several states” did not apply.

This was a major challenge to the extent of federal regulatory power. Chief Justice Rehnquist, who died this summer, and Justice Clarence Thomas, were the other justices who joined O’Connor.

It is not at all clear where new Chief Justice John Roberts might come down on this issue.