A Life for Liberty: The Making of an American Originalist

By Randy Barnett

"Law professors with a strong commitment to liberty and the Constitution are all too rare. That’s right, I said it. Randy Barnett has walked the walk as well as talked the talk. In this book, he shows how it’s done."

—Mark Levin, author of Liberty and Tyranny: A Conservative Manifesto

"Randy Barnett is in a category by himself. His pioneering contrarianism made it acceptable to believe that the Court should side with liberty against encroachments by both state and federal government."

—Rand Paul, US Senator (R-KY), author of The Case Against Socialism

From prosecuting murderers in Chicago, to arguing before the Supreme Court, to authoring more than a dozen books, Georgetown University law professor Randy Barnett has played an integral role in the rise of originalism—the movement to identify, restore, and defend the original meaning of the Constitution. Thanks in part to his efforts, by 2018 a majority of sitting Supreme Court justices self-identified as “originalists.” 

After writing seminal books on libertarianism and contract law, Barnett pivoted to constitutional law. His mission to restore “the lost Constitution” took him from the schoolhouse to the courthouse, where he argued the medical marijuana case of Gonzeles v. Raich in the Supreme Court—a case now taught to every law student. Later, he devised and spearheaded the constitutional challenge to Obamacare.

All this earned him major profiles in such publications as theWashington Post, Wall Street Journal, and New York Times. Now he recounts his compelling journey from a working-class kid in Calumet City, Illinois to “Washington Power Breaker,” as the Congressional Quarterly Weekly called him.

In A Life for Liberty, Barnett writes candidly about his career strategies, and how he overcame his outsider status, his insecurities, and the mistakes he made along the way. The engaging story of his rise from obscurity to one of the most influential thinkers in America is an inspiring how-to guide for anyone seeking real-world advancement of justice and liberty for all.

• Language: English
• Publisher: Encounter Books
• Release date: Jun 18, 2024
• ISBN: 9781641773782

Book preview

PART ONE

Gonzales v. Raich

Are You a Member of the Supreme Court Bar?

Gonzales v. Raich is one of the cases that every law student reads in Constitutional Law class. This is because it expanded the power of Congress to regulate commerce among the several states even further than the New Deal Court had done in the (in)famous case of Wickard v. Filburn (1942). Wickard, it is inaccurately taught, allowed Congress to prohibit a farmer from growing wheat on his own farm to feed his own family. Gonzales v. Raich actually did go that far: allowing Congress to bar a person from growing a substance on her own land for her own consumption.

Law students are, therefore, always impressed to learn that I argued this case in front of the Supreme Court. Indeed, I was one of the three lawyers who devised the lawsuit. My involvement with a constitutional challenge began innocuously enough. I was then on the faculty of the Boston University School of Law. The phone in my office rang one day in early 1998 while I was gazing out at the Charles River and the city of Cambridge from my window high up in the BU tower. The tower was a generally crappy building, designed in the brutalist style of architecture, but the views were amazing.

The caller identified himself as Robert Raich. Rob (as I came to know him) was one of the lawyers for something called the Oakland Cannabis Buyers’ Cooperative—OCBC for short—a retail enterprise owned by one Jeffrey Jones that was legal under both municipal and California state law. In 1996, California voters had passed Proposition 215, AKA the Compassionate Use Act, making their state the first in the nation to legalize marijuana for medical use. But the feds, Rob explained, wanted to shut down the co-op. So, in early 1998, the U.S. Department of Justice sued OCBC in district court for violating federal law.

In my BU office

Since the 1930s, it has been a federal crime to use, sell, or distribute marijuana. The Controlled Substances Act—or CSA—enacted in 1970, classified marijuana as a Schedule 1 controlled substance—the same as heroin. Schedule 2 includes meth, coke, fentanyl, and oxycodone. This means there are fewer restrictions on research and use for these addictive and dangerous drugs that have caused hundreds of thousands of deaths than there are for marijuana. Lots of what we ingest has negative health effects. But whatever ill effects are caused by smoking marijuana, there are zero recorded cases of anyone dying from an overdose. So the disparity in the federal treatment of these drugs seems arbitrary.

Rob Raich was calling because the trial judge had asked the parties to file a brief evaluating whether the Ninth Amendment applied to the case. For those who don’t know it by heart, the Ninth Amendment provides that The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The trial judge was Charles Breyer, Justice Stephen Breyer’s brother. After Judge Breyer made his request, Raich looked around the country to find an expert on the Ninth Amendment. Well, he had certainly come to the right place. At that point, if you had asked anyone in the legal profession whom they considered the country’s leading expert on the Ninth Amendment, they almost certainly would have named me—and probably only me.

When I was asked about a potential Ninth Amendment case, it usually concerned the constitutionality of a state law. That would actually make it a Fourteenth Amendment case. But this case obviously concerned the scope of federal power contra state power. So I was instantly interested in helping. Notwithstanding that I’d never smoked marijuana or taken any illicit drug, I’d become a staunch proponent of drug legalization for the same reason I believed in natural rights and liberty. I’m not much of a drinker, either, but I’d have opposed passage of the Eighteenth Amendment criminalizing the manufacture, sale, and transportation of alcohol on the same grounds.

I contributed substantially to the OCBC’s brief to Judge Breyer on the Ninth Amendment. Like most Ninth Amendment claims, it went nowhere. Even with a judge who’d invited the brief! But the Ninth wasn’t at the heart of the OCBC’s constitutional challenge to the feds’ enforcement action against it. That was Judge Breyer’s idea.

The OCBC’s main argument was that the federal government’s action exceeded the powers of the federal government under the Constitution’s Commerce Clause. There was also a criminal law argument—not a constitutional one—that marijuana was an absolute medical necessity for some patients, and therefore they should escape criminal culpability. Neither of these theories persuaded Judge Breyer.

In May 1998, Judge Breyer ruled that the government was likely to prevail in court, and he issued an injunction against the co-op’s continued cultivation and distribution of this controlled substance. The OCBC violated the injunction, insisting that to cease selling the pot would harm its patients’ health and wellbeing. In response, the judge ordered the U.S. Marshals to seize the OCBC’s premises.

This, as you can imagine, was a persuasive act. It quickly compelled the co-op to promise it would stop cultivation and distribution pending the appeal with the Ninth Circuit Court of Appeals.

By this point, I was considered a part of the OCBC’s litigation team. That team included lawyers from a bigtime white-shoe San Francisco law firm, Morrison & Foerster. It also included Gerald Uelmen, dean of the Santa Clara Law School, who had previously been a defense attorney on teams that represented Daniel Ellsberg, Christian Brando, and O.J. Simpson. (It was Uelmen who had ghosted Johnny Cochrane’s famous line about the bloody glove during his closing argument, If it doesn’t fit, you must acquit.) Uelmen was also an alumnus of Georgetown Law, where he had won the student moot court competition.

We were all working pro bono—without charge.

Our principal objection to the application of the CSA to the OCBC was that it was not a necessary and proper exercise of Congress’s power under the Commerce Clause in Article 1, Section 8 of the Constitution, which gives Congress the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. What did I know about the Commerce Clause?

Although I was primarily a Contracts professor, in the spring of 1997 I’d begun teaching a seminar I’d devised called The Ignored Constitution. The seminar began by discussing the Necessary and Proper Clause, which gives Congress the power To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. The seminar then spent the next three weeks on the Commerce Clause before we turned our attention to the Second and Ninth Amendments, and the Privileges or Immunities Clause of the Fourteenth Amendment. I would later refer to these clauses as the Lost Constitution.

One of the cases we covered in the seminar involved the Commerce Clause. It was the 1995 Supreme Court decision known as United States v. Lopez, which centered on the Gun-Free School Zones Act of 1990, a law prohibiting the possession of firearms within 1,000 feet of any school. That case concerned Alfonso Lopez, age eighteen, a high school senior in Texas who had been caught bringing a gun and ammo to school and was charged with violating the 1990 statute. As part of his defense, Lopez argued that the law was unconstitutional because Congress did not have the power to regulate guns in local schools.

You see, the federal government cannot pass just any law it wants for any reason; its powers are confined (or are supposed to be confined) by the U.S. Constitution. In a nutshell, at the founding, Congress was delegated the power to: lay and collect taxes, pay debts and borrow money, regulate commerce, coin money, establish post offices, protect patents and copyrights, establish lower courts, declare war, and raise and support an army and navy. It could also pass laws for carrying into execution the powers of the executive and judicial branches. That’s it. And these limits were purposeful: they were implemented to preserve federalism and prevent tyranny. (Later on, Congress’s powers would expressly be expanded by amendments.) When it enacted the Gun-Free School Zones Act, Congress claimed to be exercising its power to regulate commerce … among the several states.

Lopez argued in his defense that regulating guns at local schools has nothing to do with commerce between the states, so the statute exceeded Congress’s authority and was unconstitutional. The government, on the other hand, argued that the presence of firearms in schools increases violent crime, which in turn affects the economy. The government’s argument prevailed in the trial court, but the United States Court of Appeals for the Fifth Circuit sided with Lopez and vacated his conviction. So the case went up to the Supreme Court, which ruled in a 5-4 decision that Congress had indeed exceeded its authority under the Commerce Clause.

In his opinion for the majority, Chief Justice William Rehnquist reinterpreted all the post–New Deal Commerce Clause precedents as authorizing Congress to reach only local economic activity as a means of regulating interstate commerce. (The opinions in those cases had not been so limited, but their facts were.) Economic activity was a broader concept than the original meaning of commerce, which was limited to the trade and transportation of persons and goods—as distinct, for example, from contracts for real estate, insurance, or labor. But Rehnquist held that Congress could not reach local noneconomic activity regardless of what effects such activity had on interstate commerce. Possessing a gun in or near a school was simply not economic activity, so Alfonso Lopez’s noneconomic activity could not be reached by Congress.

I’d taught the Lopez decision in my seminar. It was welcomed by me and was vastly overdue. Not since 1935 had the high court ruled that Congress had exceeded its authority to legislate under the Commerce Clause. Lopez was part of what came to be called the New Federalism of the Rehnquist Court. Progressives were highly critical of these New Federalism cases, dubbing them conservative judicial activism. In 2002, while the Raich case was being litigated, I contributed an article titled Is the Rehnquist Court an ‘Activist’ Court? The Commerce Clause Cases to a Symposium on Conservative Judicial Activism held at the University of Colorado.

Judicial activism was a term coined by the historian Arthur M. Schlesinger Jr. in 1947 to describe, somewhat critically, the New Deal justices who wanted to wield judicial power in pursuit of progressive ends. Schlesinger contrasted these activists with those justices he called lions of judicial self-restraint. Progressives had long cheered the activism of the Supreme Court under Chief Justices Earl Warren and Warren Burger when it invalidated federal and state laws. Now, however, when conservative justices ever-so-slightly limited Congress’s commerce power, judicial activism by the Court was once again considered to be bad.

The Lopez precedent bolstered our case for the OCBC. Our next step, obviously, was to appeal District Judge Breyer’s decision to the federal Circuit Court of Appeals for the Ninth Circuit. Gerry Uelmen did the oral argument in San Francisco in front of a three-judge panel that included the famous progressive Stephen Reinhardt, a Jimmy Carter appointee. Citing Lopez, Uelmen made the case that the feds’ actions exceeded Congress’s power under the Commerce Clause. How could a business licensed by a state and municipality doing business only and entirely within a few given ZIP codes, and not across state lines, fall within the purview of this federal power?

Uelmen also offered the court an alternative argument that was essentially a variation on the doctrine of necessity. This is a doctrine in criminal law that allows defendants to assert, as a defense to an otherwise criminal act, that the violation was justified if it prevented greater harm. The medical use of marijuana, the OCBC contended, allowed users to avoid the greater harm that would result from their illnesses by committing the lesser harm of violating the federal law against purchasing marijuana. I was doubtful that we’d prevail on this theory of medical necessity. Frankly, we all were doubtful. It was a Hail Mary fallback from our various constitutional theories.

While the OCBC case was being decided, I traveled to the Bay Area to give a speech at a libertarian nonprofit. Rob Raich offered to pick me up at the airport and drive me to the locale. We’d never met in person, and he didn’t want to miss the opportunity to spend some time together. He was also eager to attend the talk.

We liked each other right away, and our conversation as Rob drove to the venue moved seamlessly between personal matters and the legal case. At one point he asked, Are you a member of the Supreme Court Bar?

No.

Well, you need to join the Supreme Court Bar.

Why?

Because you’re going to argue this case in the Supreme Court.

I was bemused. First of all, Rob, I said, this case isn’t going to the Supreme Court. That’s how skeptical I was about our prospects. To get to the Supreme Court, we would need a favorable ruling from the progressive Ninth Circuit judges, which was highly unlikely. If the Ninth Circuit ruled against us, the Supreme Court would never grant our petition to hear the case. And even if they do, I continued, I’m not the one who’s going to be arguing it.

Just join. Okay?

Okay.

So I dutifully joined the Supreme Court Bar.

What do you know? To my surprise, the Ninth Circuit ruled in our favor on the grounds of medical necessity—Hail Mary passes sometimes work—allowing the OCBC to stay in business. The court ruled that there was a strong public interest in the availability of a doctor-prescribed treatment that would help ameliorate the condition and relieve the suffering of a large group of persons with serious or fatal illnesses, and noted that the City of Oakland had declared a public health emergency in response to the injunction on distributing marijuana to those who’d qualified medically to receive it.

Our Commerce Clause argument was put on hold while the government sought Supreme Court review of the medical-necessity ruling. The Commerce Clause theory, about which I had the most expertise, was now effectively dropped from the case for the time being.

Whenever a federal statute was being held unconstitutional to any degree by a lower court, the Supreme Court considers itself obligated to hear the government’s appeal. So it dutifully granted the government’s petition for certiorari. With the case now before the Court, everyone on the legal team contributed to the brief that was primarily written by Morrison & Foerster. California’s attorney general, Bill Lockyer, also filed an amicus brief on our behalf. The only question was who would do the oral arguments in front of the justices and answer their piercing questions.

This was not a decision to be made by the team members. It was, and always is, a decision that’s made by the client. Who does the client want to stand up there and make the best case orally? Who was agile enough to handle whatever unforeseen questions that skeptical and infinitely clever justices would throw at him?

Rob Raich advised the client, Jeff Jones, to have me argue the case. Morrison & Foerster emphatically said no. No way was this BU law professor who hadn’t been in a courtroom since he was trying murder cases in Chicago some fifteen years ago—and who’d never even clerked for any judge, let alone a Supreme Court justice—qualified to make this argument. Of course, they were absolutely correct about all that. I had never even seen a Supreme Court argument, much less made one.

In making their objection, the Morrison & Foerster lawyers—well, they didn’t want to take any chances. A BU colleague of mine told me that she had been contacted by someone from the firm who was gathering information about me. Eventually, the Morrison & Foerster attorney on the case informed Jeff Jones that they would stop representing him pro bono if he chose me to argue the case. Yes, they were writing the briefs and doing the yeoman’s work, and they deserved to have their opinion followed, but making such a threat to their client was unethical. And crappy.

Naturally, Rob and Jeff reluctantly relented. But it rubbed Rob the wrong way to have the Morrison & Foerster partner arguing the case instead of me, so they settled on a compromise candidate: Gerry Uelmen. Even apart from my lack of experience, this was a wise choice because Gerry was the one who’d devised the medical necessity defense that had won over the Ninth Circuit. While I was annoyed by Morrison & Foerster’s tactics, I was perfectly fine with this decision.

The case was heard on March 28, 2001. Gerry did a superb job. It was my first time attending a Supreme Court case in person, and I had some vicarious nerves. But there wasn’t a single moment that I thought I’d have done a better job than Gerry did. And there were many moments I was glad not to be up there. Not one justice seemed in any way persuaded that there was a medical-necessity exemption to the Controlled Substances Act. Several seemed outright hostile.

As I think we all expected going in, the Ninth Circuit was overturned yet again. Quickly too—a mere six weeks. And unanimously. The only reason the vote was 8-0 instead of 9-0 was that Justice Breyer recused himself on the grounds that his brother had been the trial judge. The case now had to be remanded to the Ninth Circuit to consider our other theories based on the Commerce Clause, the Due Process Clause of the Fifth Amendment, and the Ninth Amendment.

In 2000, a year before the Supreme Court decided United States v. Oakland Cannabis Buyers’ Cooperative, it ruled that Congress had again overstepped its Commerce Clause authority when it enacted part of the Violence Against Women Act of 1994 (VOWA). Specifically, VOWA created a federal crime of gender-motivated violence, which granted women the right to sue their alleged attacker in federal court. Once again, a 5-4 majority of the Court found that Congress had exceeded its power under the Commerce Clause when it created this crime.

Like the Lopez decision a few years earlier, Chief Justice Rehnquist’s opinion for the majority in United States v. Morrison noted that the Commerce Clause gave Congress the power only to regulate activities that were economic in nature. Whatever an attacker may have done, or however deplorable his actions might be, they were in no way economic in nature. As such, gender-motivated violence was outside the power of Congress to prohibit, regardless of any effect it may or may not have on interstate commerce.

Before Morrison, law professors had discounted Lopez as a one-off decision. After all, Congress hadn’t held any hearings or done any factfinding about the economic impacts of guns in schools. But it did all those things to show the impacts of violence against women. To academia’s surprise, Congress’s findings were not enough to save the statute.

At this point, everyone started to believe that the Rehnquist Court might truly be serious about arresting the ever-expanding powers of Congress. Lower courts started to fall in line. So the time was ripe for another suit that would take advantage of the line between economic and noneconomic activity that the Court was now insistent on drawing.

From OCBC to Gonzales v. Raich

Back in the Ninth Circuit, our constitutional argument for the Oakland Cannabis Buyers’ Cooperative had a glaring weakness: When people went into the Oakland Cannabis Buyers’ Cooperative, they had money in their pocket, and when they left, they had marijuana in their pocket. At some point in that building, money and marijuana had changed hands. That’s not only economic activity, which the Court had held that Congress could regulate; it’s actual commerce, a subset of economic activity that involves trade, exchange, and the movement of persons or goods.

True, all of that was wholly intrastate commerce, not interstate, which was why our Commerce Clause objection still ought to have been valid. But it was hard to imagine the Ninth Circuit, let alone the Supreme Court, ruling that Congress could not reach actual intrastate commerce as a means of regulating interstate commerce. I explained all this to Rob.

Having taken this problem to heart, Rob called one day. What do you think about our bringing a new lawsuit that would involve no economic activity? he asked. Would you be willing to be a lawyer in the case?

Sure, I replied. What do you have in mind?

Suppose we found someone who is just growing marijuana for themselves to use themselves for medical purposes?

That would be much better, I replied. It would make a much stronger case.

It seemed to me that arguing a citizen is legally entitled on constitutional grounds to cultivate, possess, and use marijuana for his or her own medical purpose with no money changing hands would stand a chance—infinitesimal, possibly, but a chance nonetheless. Of course, to bring such a suit, we’d need a willing plaintiff. When he called me, Rob already had someone in mind.

Angel McClary was a woman who’d been very sick from a variety of illnesses that manifested in what’s known as wasting syndrome, an unwanted loss of at least 10 percent of body weight. During one of her hospital stays, a nurse had recommended she try marijuana, insisting that it could bring back her appetite and help her build both weight and strength. And the nurse turned out to be right.

Angel’s appetite, weight, and strength returned, and with that her sense of well-being. Each time she stopped using pot to see if maybe it was all in her head, the symptoms returned. So she stopped stopping, and credited marijuana for saving her life. Because Angel was unable to cultivate the plants herself, two caregivers grew it for her without charge.

Around the same time, Rob learned of another woman with a similar medical story. Unlike Angel, Diane Monson’s medical issue was not life-threatening. She suffered from severe back pain and spasms. She had tried prescription medications, but they either didn’t work or left her with unpleasant side effects. Marijuana did the trick. To avoid having to purchase it on the street from criminal dealers, Diane, unlike Angel, was able to cultivate her own plants on the grounds of an apartment building she owned in Butte County, north of Sacramento.

One day, while DEA agents were on the premises to arrest one of her tenants for possessing or selling hard drugs, they noticed Diane’s six marijuana plants in her back yard. After obtaining a search warrant, the DEA agents tried seizing the plants. Given that pot was legal under California law, they were opposed by Butte County sheriff’s deputies. This real movie moment resolved when the agents called the U.S. attorney for the Northern District of California, who called the Butte County sheriff, who told his deputies to stand down and let the DEA agents confiscate the plants.

Rob Raich knew Diane’s criminal attorney, David Michael. They both agreed to join forces with me. While the OCBC case was pending in the Ninth Circuit on remand from the Supreme Court to hear our constitutional challenges, Rob, David, and I filed suit in the Northern District of California on behalf of Angel and Diane. Each complainant contributed something to our theory. Unlike Diane, Angel’s use of marijuana was life-preserving. Unlike Angel, Diane had actually been injured by the seizure of her plants, which gave her standing to sue. In a constitutional challenge, it takes only one person in a group to have standing, so Diane’s presence was essential to our case.

By the time we filed suit in October 2002, Angel and Rob had married, so she was now Angel McClary Raich. The defendants were John Ashcroft, the U.S. attorney general, and Asa Hutchinson, the administrator of the DEA, whom we accused of unconstitutionally exceeding their authority by embarking on a campaign of seizing or forfeiting privately-grown intrastate medical cannabis from California patients and caregivers, arresting or prosecuting such patients, mounting paramilitary raids against patients and caregivers, harassing patients and caregivers, and taking other civil or administrative actions against them. This was the beginning of years in which I conditioned myself never to say medical marijuana. Medical cannabis sounded much more like medicine and less like weed, pot, or dope.

Physicians for the plaintiffs, we pointed out, had sworn out declarations that marijuana was, in effect, saving Angel’s life; that both plaintiffs had tried a variety of other prescribed pharmaceuticals with nowhere near the efficacy of marijuana—er, I mean medical cannabis. In our complaint, we alleged violations of the Commerce Clause, due process, and the Ninth Amendment, among others. The suit, which would come to be called Raich et al. v. Ashcroft et al., landed in the U.S. district court of Judge Martin Jenkins (who today sits on California’s Supreme Court).

The feds, of course, filed a motion to dismiss our suit, which meant we’d have to appear in court to answer any questions the judge would have before deciding whether to toss the whole suit or any portion thereof. Or, alternatively, he could grant our request for a preliminary injunction, declaratory relief, and a permanent injunction enjoining the feds from prosecuting the plaintiffs, seizing their property, or seeking civil actions against them.

This time, there was no question who would stand up in court to argue the case. Or so I thought.

I flew from Boston to San Francisco. I was still working pro bono, and would do so throughout the pendency of the case. But my travel expenses were paid by a nonprofit marijuana policy foundation. In the courtroom hallway before we entered, I met David Michael, a pleasant and engaging man. He said, I’m so excited about arguing this case. I’ve been doing a lot of reading and studying, and I’m ready to go argue the Commerce Clause part.

Wait, what? David was a criminal lawyer. I thought that I, the constitutional law professor, was arguing the Commerce Clause part. I’d even published an article in the University of Chicago Law Review the previous year, The Original Meaning of the Commerce Clause, in which I defended the historical accuracy of Justice Clarence Thomas’s concurring opinion in United States v. Lopez. Not that I pulled rank. I was actually quite impressed by David’s self-confidence and enthusiasm. And this was the very moment of our first meeting. Not the time to get into a pissing match.

So the three of us—David, Rob, and I—discussed the matter and decided that we would all go up to the bench if the judge permitted it. I hadn’t been in a courtroom as an attorney since my days as a prosecutor in Cook County, Illinois, but I felt completely at home. That is, until I was sitting at the counsel table, waiting for our case to be called. Suddenly, I began to panic, uncertain whether I was prepared enough to do this. Though on the inside I was having a traumatic emotional breakdown, if you were looking at me from the outside, you’d have thought I was the coolest cucumber in the salad—a skill I’d nurtured when trying murder cases to juries in Chicago.

As I sat there, I was listening to the devil on one shoulder and the angel on the other. The devil said, Go ahead, make it easy on yourself, just let David argue the case. He wants to, and you’ll be off the hook. The angel said, If you let him argue the case, it’ll be the biggest mistake of your career. I literally thought these last words. Never before or since have I experienced such internal conflict and indecision. When our case was called, the three of us approached the bench. David and I flanked the bench facing each other, while Rob stood in the middle directly in front of the judge. Judge Jenkins granted us permission to answer en masse, if necessary. This was good of him; he didn’t have to.

The judge asked his first question, which concerned the Commerce Clause. I looked directly at David as if to politely hand him the baton he’d been eager to carry. And he promptly dropped it. In about three seconds it became clear that he had no idea how to respond. That was all I needed. I immediately piped up to answer the question. From then on, the judge looked only at me, directing his questions only to me, and only I answered. As the questioning continued, I became calm. I was back in my element, the marriage of courtroom and teaching.

Even so, in early March 2003, Judge Jenkins refused to grant the preliminary injunction because, in his opinion, we had failed to establish a sufficient likelihood of success on the merits of our arguments. Indeed, he reached the merit of our claims and ruled against us, dismissing our complaint. He held that even if all the facts we alleged were true, the application of the Controlled Substances Act to Angel and Diane was authorized by previous Supreme Court precedents and was therefore constitutional. Under these precedents, he ruled, there was no need for a trial to determine whether Congress actually needed to reach stateregulated intrastate marijuana possession to effectively regulate the interstate trade in marijuana.

Next step: appeal to the Ninth Circuit. I started writing the briefs based on our two theories, the Commerce Clause theory and a Due Process Clause theory (with a nod to the Ninth Amendment as well).

Just months before, the Ninth Circuit had heard another Commerce Clause case filed by a criminal defendant named Rhonda McCoy who’d been convicted of child pornography. In her appeal, she claimed that Congress lacked the authority to punish an individual for possessing a single photograph (of herself and her naked young daughter) that had not been either sold or bought; nor had the photo or any of the materials used in the production of the photo traveled across state lines.

McCoy’s lawyers had used both the Morrison and Lopez decisions to argue their point in front of a three-judge panel led by Stephen Reinhardt, the same notoriously liberal judge who had ruled for OCBC on its medical-necessity defense. In a 2-1 decision—Reinhardt and Wallace Tashima, a Clinton appointee, being the two—the Ninth ruled for McCoy. The dissenting vote was Stephen Trott, a Reagan appointee.

Only weeks after that ruling, we drew a panel of judges for our appeal to the Ninth: Harry Pregerson, a Carter appointee, who presided; Richard Paez, a recent Clinton appointee; and Arlen Beam, a conservative Reagan appointee to the Eighth Circuit who was sitting by designation to fill out the panel. Harry Pregerson was a local legal legend. You may have seen an aerial photo of an L.A. freeway exchange that looks like a bowl of spaghetti. That is the Judge Harry Pregerson Interchange, near the Athens and Watts communities of Los Angeles.

The son of Jewish immigrants from Ukraine, Pregerson served in the United States Marine Corps as a first lieutenant in World War II and was severely wounded in the Battle of Okinawa. Later he was nicknamed the 9th Circuit Cowboy for his handsome Stetson hat. Pregerson was known as an ardent liberal before that label was abandoned in favor of progressive. At his confirmation hearing, he testified: My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout Oath, and the Marine Corps Hymn. If I had to follow my conscience or the law, I would follow my conscience. (Spoiler alert: by the time you reach the end of this book, you will understand why no judicial nominee would today so testify.) Pregerson remained on the bench until his death in 2017 at the age of ninety-four.

This time at the Ninth Circuit, there was no competition over who would stand before the judges. Yes, I was nervous, this being my first time in front of appellate judges, but that was a good thing. A controlled nervousness can focus the mind. And I think I did fine. What sticks out most in memory is one exchange between Pregerson and me, which began with a simple question: Are you arguing for the right to use marijuana for medical purposes as authorized by state law?

No, your honor, I said. The right we’re asserting is the right to preserve one’s life and to avoid pain and suffering. That right was the basis of our due process claim.

No, he said in a cantankerous tone, I’m not talking about your due process clause argument. I’m talking about your Commerce Clause argument.

This momentarily confused me. Pregerson had messed up. He used the word right when he should’ve asked me about the class of activities we were claiming was outside the power of Congress to reach under the Commerce Clause. I had properly answered the question about the right we were arguing for. But that wasn’t actually what he wanted to know.

Seeing that he had flummoxed me, Pregerson lightened up and graciously asked, Do you want me to repeat it for you?—meaning how he’d identified the class of activities as the use of marijuana for medical purposes as authorized by state law.

The right answer to a judge’s generous question like that is, Yes, your honor, thank you. Please repeat it for me. But instead, now realizing what he was really asking about, I asserted my legal machismo and replied, No, your honor, what you said was correct—meaning that, notwithstanding his use of the term right, he had correctly defined the class of activities we claimed to be beyond Congress’s commerce power. When I recount this story to my law students, I tell them they should never do what I did.

After the argument, I went straight from the courtroom to the San Francisco airport. As the plane was taxiing to takeoff and I was looking out the window at the San Francisco Bay, I had an epiphany: We are going to win. Why? Because of the way that Pregerson wanted to be sure about how we defined the class of activities that Congress could not reach (even though he had mistakenly referred to a right). It suddenly dawned on me that he was essentially asking me to help him write his opinion. He wanted to be clear that he had the right definition of the class.

A tingling feeling of satisfaction and anticipation spread over me. Until that feeling was sledgehammered by another thought: Wait a second. Did he define the class of activities correctly? I don’t know. I can’t remember. Shit. What if he didn’t? What if the class of activities he’d recited to me was not the right one. What if I’d agreed to the wrong class of activities. Damn, why didn’t I let the judge restate?

Back in Boston, I didn’t call for a transcript of the proceedings. I just hoped for the best. And the best is what came true several months later. In December, the two liberal judges voted to grant our motion for a preliminary injunction preventing the feds from interfering with Raich and Monson. Unlike Judge Jenkins, the panel ruled that we were likely to succeed on the merits of our Commerce Clause theory. In his opinion, Judge Pregerson defined the class of activities just as we had requested.

We find that the appellants have demonstrated a strong likelihood of success on their claim that, as applied to them, the Controlled Substances Act is an unconstitutional exercise of Congress’ Commerce Clause authority.

The only way this could’ve been better: a 3-0 decision, with the Reagan judge on loan from the Eighth Circuit voting for us as well. Judge Beam’s dissent would prove to be a harbinger.

Now, you might think it would be the conservative judge who’d rule that the feds were overstepping their authority, and the liberal judges who’d rule that the Commerce Clause has few if any limits. But that would be to misapprehend the degree to which judicial conservatives had accepted wholesale the judicial restraint position adopted by progressives to justify Congress’s power to regulate the national economy.

Of course, judicial restraint was the progressive position before FDR’s appointments gave progressive justices control of the Supreme Court. After gaining control, a majority of the progressive justices abandoned this professed commitment. By 1947, as I noted, Arthur M. Schlesinger Jr. would dub this group judicial activists. In pursuit of social justice, they would freely reverse precedents to invalidate state and federal laws. Gone now was their previous insistence on judicial self-restraint. That commitment then became the mantra of political conservatives who opposed the activist Warren Court now beloved by progressives. The judicial restraint philosophy favored by political conservatives came to be called judicial conservatism.

These judicial conservatives knew that holding Congress to the limits of its enumerated powers was justified as a matter of original meaning. And yet, in the name of judicial restraint, they asserted that precedent, or stare decisis, bound them to adhere to what some call the New Deal consensus. Under that consensus, Congress had broad authority to address national economic problems, limited only by a few fundamental rights. Judicial restraint thus put conservatives on the side of the New Deal Court’s rulings on the scope of federal powers.

My two big Commerce Clause cases—Gonzales v. Raich and NFIB v. Sebelius—would contribute to a weakening of this commitment to judicial conservatism defined as judicial restraint. In its place would arise what can be called constitutional conservativism, under which courts can legitimately enforce the limits on congressional powers.

When deciding our appeal in the Raich case, Judge Beam, the Reagan appointee, was an old-school judicial-restraint judge. So he ruled against our Commerce Clause challenge. But what about the two liberal judges, Pregerson and Paez? Why would they have adopted our Commerce Clause theory as opposed to, say, our Due Process Clause theory? Part of the skill set I’d acquired as a prosecutor in the Cook County State’s Attorney’s Office was to anticipate and discern behind-the-scenes maneuvers so I could counter them. The disparity between the politics of the progressive judges and their ardent Commerce Clause rulings caused my Cook County prosecutor’s instincts to kick in.

My working theory at the time was that the liberals on the Ninth Circuit voted for us as part of a Machiavellian scheme they’d devised in response to the Rehnquist Court’s decisions of Lopez and Morrison. The liberal judges loathed those decisions, which had put theoretical limits on Congress’s power under the Commerce Clause, but as what the Constitution calls inferior court judges they were bound to follow Supreme Court precedents.

So their leader, Stephen Reinhardt, I surmised, had developed a strategy to get the justices to back off—by invalidating or limiting federal statutes on Commerce Clause grounds to produce cases with terrible facts. Any such case the Supreme Court would have to take. Eventually, one or more of the conservative justices would break, and decide that Congress must be empowered to prevent such bad outcomes. If that was Reinhardt’s plan, it was clever. Not for nothing was he known as the liberal lion of the Ninth Circuit, and the judge from whom the progressives on that court took their direction.

I didn’t think Pregerson and Paez would have made this gutsy move without the leadership of their colleague Reinhardt, who pointed the way in the McCoy child-porn case for which he himself wrote the decision. In its McCoy decision, Reinhardt’s panel had found the federal child-porn statute unconstitutional as applied to simple intrastate possession of a visual depiction that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.

In my mind, the only explanation for what Reinhardt did in McCoy was that he had decided to run a game on the conservative justices, challenging them to put their votes where their principles were: Go ahead, we dare you. You like the Commerce Clause? Fine. Let’s see how much. We dare you to keep to your doctrine in these cases, no matter how bad it tastes going down. Reinhardt had shown Pregerson and Paez how it was done, making it cool for them to rein in the Commerce Clause on marijuana, too. (It would not have surprised me if Stephen and Harry had even discussed the strategy in person or on the phone, but I have no such information.) My hope was that the conservative justices would see through this gambit and call their bluff.

But also coming the Court’s way, if the conservative justices did not fold, was United States v. Stewart, a case about making and possessing a fully automatic machine gun. Stewart was a convicted felon who machined and assembled a fully automatic rifle for his own use. Stewart was decided in the Ninth Circuit after both McCoy and Raich, so the panel, this time composed entirely of Reagan appointees, followed the previous Ninth Circuit decisions finding limits on the Commerce Clause.

In an opinion by Judge Alex Kozinski—a Reagan appointee—the panel upheld Stewart’s conviction as a felon in possession of a firearm, but vacated his conviction for unlawfully possessing a fully automatic machine gun. Using Morrison as a standard for the Commerce Clause, the opinion said there was no proof that this provision of the U.S. Code had been enacted to regulate commercial aspects of the machine gun business. More likely, [it] was intended to keep machine guns out of the hands of criminals—an admirable goal, but not a commercial one.

Which was why I felt both elated and uneasy when the Supreme Court granted cert for our case four months later, in April 2004, with oral argument set for the end of November. Elated because they took our case and state-regulated medical marijuana was the most sympathetic of the three Ninth Circuit cases heading their way. Uneasy as to whether the conservatives would be willing to stay the course in the face of this clever Ninth Circuit gambit. While medical marijuana had jumped ahead of child porn and fully automatic machineguns to reach the Supreme Court first, the justices knew full well what the Ninth Circuit had on tap.

In reality, given the nature of this case and the national consequences of a win for other federal statutes, the chances of getting five justices to say yea seemed slim. The best I could hope for, it seemed to me, was that Justice Scalia and the other conservatives, like Justice Thomas, would see through Reinhardt’s stratagem and not let him win. What about the progressive justices? Might they vote to protect marijuana users in California in a case that was blessed by the Ninth Circuit? I thought that this was highly unlikely, and my instinct would be borne out by the tenor of oral argument.

But, once again, I would have to fight to be the lawyer who appeared before the Supreme Court to argue our case.

I’d Have to Think about It

Well, now we were going back to the Supreme Court with a case that would eventually become known as Gonzales v. Raich, after John Ashcroft was replaced as attorney general by Alberto Gonzales in February 2005. The oral argument was scheduled for the end of November 2004. Once our cert petition was accepted, Rob was approached by the white-shoe D.C. law firm of Covington & Burling to assist us pro bono at the Court. This was par for the course for Big Law firms with Supreme Court practices. When a case makes it all the way to the Court, they will swoop in and try to snag the chance to do the oral argument.

Rob agreed to let them assist. But he assured me that I would definitely be up there arguing the case. He had made that perfectly clear to the partner who had approached him to volunteer the firm’s assistance. I was grateful for their help. In the lower courts, I was the main author of the briefs. But in the Supreme Court, our brief was brilliantly written by a young associate named Joshua Greenberg, with input from me and the other lawyers.

That summer, before Covington had completed and filed the brief, the partner—I’ll call him Tom—went to Rob Raich to say he wanted to argue the case. I think I should because I’ve argued a lot of cases. True, he had argued lots of cases, being a former deputy solicitor general who went on to head Covington’s appellate and Supreme Court ligation group. Rob told him that this was not our deal, but Tom reminded him that the decision was the client’s to make. And Tom then demanded an opportunity to pitch the client.

Rob and I both feared a reprise of the situation with Morrison & Foerster in which Covington might not deliver its brief if we refused their demand to argue the case, leaving us in the lurch. So Rob assured Tom that he would get his opportunity to pitch Angel and Diane. But Rob then procrastinated on scheduling the meeting for as long as he could.

When Rob told me what was up, he assured me that, at the end of the day, I would be the oral advocate. After all, he also had to worry that I might drop out of the legal team. I will put it in writing if it makes you feel any better, he said. I told him that nothing he wrote would be binding, so he might as well not bother. We both had to wait and see.

After Rob scheduled a conference call with Angel and Diane, but before the call could happen, Tom reached out directly to me. I answered the phone in my study in the house we’d built in Newton, just outside Boston. To my surprise, he was calling to persuade me to surrender the oral argument to him. I distinctly remember sitting at my desk, staring out the window at the trees and foliage as he did his best to explain why I should defer to him and let him argue the case.

He had a point. I, Professor Randy Barnett, had delivered zero oral arguments at the Supreme Court, while he, senior partner heading the Supreme Court practice of a major D.C. law firm, had done so numerous times. So wouldn’t he be the right choice, Tom asked—appealing to the better angels of my conscience—for the appellants? Didn’t I want to give everyone, especially the two women, their best chance to win?

The words were eloquent, but Tom’s thought bubble read: I’m talking to a pointy-headed intellectual law professor. What he didn’t realize was that he was actually talking to a former Cook County state’s attorney. Even if he did know that I’d once been a Cook County prosecutor—and he probably did—he couldn’t possibly have understood fully what that meant—what it really meant. For the elite who, like me, went to Harvard Law or some other prestigious law school, being a county prosecutor was far down on the totem pole. But Tom had no idea of the skill set needed to survive in that job.

So all the time he’s talking to me, trying to persuade me to step aside, I’m thinking, This conversation goes both ways; this is my opportunity to depose him.

All things being equal, I said, "having more experience is better, you’re absolutely right. But you know, given the nature of this case, I think what’s even more important is for the oral advocate to be somebody who really understands the theory of the case. I’ve been here doing that, developing these ideas, for years, and I understand completely the legal theory of the case.

And not only that, I continued, "I think it’s very important for the advocate to actually believe in our theory of the case—to agree with the holdings in Lopez and Morrison, because our entire case is based on them. So my question to you is this: Do you think Lopez and Morrison were correctly decided?"

Pause.

Silence.

Well, Tom finally replied, I’d have to think about that.

Okay, that’s fine, I said.

Except it wasn’t fine at all. And I now had the ammunition I needed to keep the case. The day before Tom’s conference call with Angel and Diane, I had my own call with them. I basically related the substance of my conversation with Tom and why he thought he was the best lawyer for their case because of his experience.

Then I said, All things being equal, I wish I had the experience, too. But I believe in this case. I believe that our theory is correct, and I believe that the precedents on which we’re relying are correctly decided. Does he? I know he doesn’t. Telling me he’d have to think about it was his way of dodging the question. But even if he is being sincere, that tells me he hasn’t done enough deep thinking about what our case is really about.

All right, I’d made my pitch, and now the group call with Tom was arranged. I was on the call, too, and he knew I was, but I didn’t say a word. I’d already said what I had to say to Angel and Diane, and everything he said to them was what I’d told them he would say. In Cook County, we called this wiring the case. But had I successfully done so?

We hung up with nothing decided.

Then the phone rang. It was Rob Raich. Diane and Angel are going to pick you, he said. You’re the lawyer in the case. So it’s you. But we’re afraid that if we make it public now, Covington will pull out of the case and deny us the completed brief that the associate was doing such a bang-up job on. So let’s hold off on the announcement until the brief is turned in. He again offered to put the decision in writing, and this time I consented, but it was just a piece of paper. The client chooses who argues the case and can make a change at any time, right up to the moment the case is heard.

Today, with the benefit of years of experience watching the Court, I am even more convinced my stance was correct than I was back then. No justice wants to be gamed by lawyers who aren’t committed to their own argument. For example, the conservatives on the Court are suspicious of originalist arguments by lawyers who don’t themselves believe in adhering to the original meaning of the Constitution.

In Raich, I