U.S. SUPREME COURT Conservative divide opens up in upcoming cases

The conservative justices have served notice that they want to restore limits on federal power.
LOS ANGELES TIMES
WASHINGTON -- The U.S. Supreme Court can ignore the usual liberal-vs.-conservative divide in the next two weeks when it takes up California-centric cases on medical marijuana and the direct shipping of wine to consumers. Instead, the justices will be forced to decide between competing versions of conservatism.
The social conservatives seek more government enforcement in areas including abortion, immigration and gay rights. The small-government, free-market conservatives seek fewer restrictions on private behavior.
It's a clash likely to echo in Washington, D.C., in the years ahead, as Republican control of all three branches of the government potentially could sideline Democrats and expose philosophical rifts within the GOP. The Supreme Court, where seven of nine justices are Republican appointees, will face especially stark choices on a range of issues.
Marijuana
In a case to be taken up this week, departing Attorney General John Ashcroft is challenging the California law that permits seriously ill people to obtain marijuana to relieve their pain if they have the recommendation of a doctor.
Ashcroft argues for strong federal enforcement of drug laws. And he is joined by a group of drug warriors and half a dozen socially conservative Republicans in Congress who, in briefs to the court, argue for a zero-tolerance policy on marijuana.
But leading conservative academics, including veterans of the Reagan administration, have joined the case on the side of the California medical marijuana users. They argue for limits on federal power and protection for states' rights -- including the right to enact the marijuana law.
"This is a real test of federalism," says Pepperdine University law professor Douglas W. Kmiec, a former Reagan administration lawyer, who filed a brief on behalf of the libertarian CATO Institute supporting medical marijuana users.
The wine shipping case features a similar dispute between conservatives who champion free trade and those who support strict state controls on alcohol, including a national group of evangelical Christians.
Limits on power
In the past decade, the high court's conservative justices, led by Chief Justice William H. Rehnquist, served notice that they wanted to restore the limits on federal power.
They did so by focusing on the Constitution's main source of federal power, the provision that says Congress "may regulate commerce among the several states." In the 20th century, this became the basis for federal laws that set minimum wages, prohibited discrimination in the workplace and protected the environment.
But Justice Rehnquist said this power has limits too. In 1995, he spoke for a 5-4 majority that struck down the federal Gun Free School Zones Act on the grounds that the mere possession of a gun did not involve interstate commerce. Five years later, the same 5-4 majority voided part of the Violence Against Women Act which allowed victims of sexual assaults to sue their attackers in federal court. A sexual assault is a crime, but it is not interstate commerce, Rehnquist said.
Those rulings were applauded by conservatives who said they helped to restore the Constitution's limits on federal authority. Many liberals faulted the rulings as examples of unwarranted conservative judicial activism.
The four liberal justices -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- dissented in the gun control and sexual assaults cases, saying the court should uphold the broad reach of these federal laws.
Now, the medical marijuana case, Ashcroft vs. Raich, raises the same constitutional issue, but with the ideological leanings reversed.