Boerne....Lane

[Volokh, Eugene]

But isn't it even worse than that?  Since Stevens and Ginsburg joined the majority in Boerne, do they really believe Congress should have McCulloch-like latitude under section 5?  (Stevens may have also thought RFRA was unconstitutional under the Establishment Clause, but he joined the majority opinion; and Ginsburg joined just the majority, and declined to join Stevens.)
 
Eugene

	-----Original Message----- 
	From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson 
	Sent: Sun 11/28/2004 12:26 AM 
	To: CONLAWPROF at lists.ucla.edu 
	Cc: 
	Subject: RE: Boerne....Lane
	
	
	As I prepare to teach Garrett, Hibbs, and Land on Monday (following Boerne and Morrison), is it fair to say that a minimum of seven justices (Breyer, Stevens, Ginsburg, Scalia, Kennedy, Thomas, and Souter) believe that the cases as a sequence make no sense at all, but that they disagree 4-3 on the correct decision rule?:  i.e., Breyer, Stevens, Ginsburg, and Souter would give Congress McCullloch-like latitude under Section 5, while Kennedy, Thomas, and Scalia would rein in Congress substantially.  The two deviants, obviously, are O'Connor (as always) and Rehnquist (in Hibbs).  Isn't this a fairly perfect example of the difficulty (unto impossibility) of looking for truly coherent doctrine on a multi-member court that is significantly split?   I take it that none of us would have much trouble, at least pedagogically, if one wing or the other had truly prevailed (especially if the Court had adopted Scalia's "no prophylactic legislation" view, however dubious it is).  How in the world is one suppoed to take seriously (or, more to the point, teach our students that they should take seriously)the alleged differences between Garrett and Hibbs or Lane?   Doesn't it all  boil down to Justice O'Connor's (unarticulated) intuitions?  
	 
	sandy