The opinions in Ashcroft v. Raich

[Mark Graber]

For what it's worth, I suspect an exceptionally high percentage of the
proposals in the contract with America are inconsistent with the
majority principles in Butler v. United States. Hammer v. Dagenhart, or
Carter v. Carter Coal.  Important differences exist between the regime
of 1994 and the regimes of 1937 or 1965, but a commitment to George
Sutherland's constitution is not one of the lines of demarcation.

Mark A. Graber

>>> "Samuel Bagenstos" <srbagenstos at wulaw.wustl.edu> 06/06/05 2:54 PM
>>>
Although there's a lot I agree with or find interesting in David's post,
I have to object to the implicit suggestion that Justices Kennedy and
Scalia are just following broader political trends, which David suggests
were very devolutionary in 1995 and much more nationalistic now. 
Without denying that courts (including the Supreme Court) are strongly
influenced by broader trends in the political culture, I don't think the
explanation fits here.  Rhetoric aside, I don't think there was *ever* a
majority -- not in 1995, and not now; not in the Court, and not in
Congress -- for a massive shift in the federal-state balance that
existed in the period immediately prior to Lopez.  There are too many
issues for which social and business conservatives like federal power,
and libertarians like Randy and David are, and always have been, a
relatively small faction within the conservative movement (though a
faction whose ideas -- which are often really interesting, provocative,
and persuasive -- have been cherry picked by other conservatives).

Though lots of people, on both left and right, read Lopez to herald a
massive shift in the federal-state balance, another reading was always
plausible (and I always thought more plausible, which is why I, too,
predicted the outcome of this case):  The Court majority just wanted to
assert that there was *some* limit on federal power.  And it was Justice
Kennedy who told us, way back in 1995, in his concurrences in Lopez and
Term Limits, that he certainly didn't read Lopez as portending a massive
shift.  So I actually think Justice Kennedy's been quite consistent.

As for Justice Scalia, I'm sure this is the first time he's been
accused of having his vote affected by the sense that the Court should
not expend political capital!  More seriously, why not just take at face
value what he says in his concurrence?  This is really an uncommonly
easy Commerce Clause case (which does, indeed, make it a testament to
Randy's talents that he was able to persuade the Chief Justice, Justice
O'Connor, and Justice Thomas to come over to his side).  Marijuana's a
good in which there's extensive interstate commerce.  It's sold in
consensual transactions, so it's hard to enforce the prohibition on the
commerce without prohibiting possession.  It doesn't take a rocket
scientist to see that if people can possess marijuana that hasn't
crossed state lines if it's for medicinal purposes, that makes the
prohibition yet harder to enforce.  That may be an acceptable cost -- a
majority of Californians thought so, and I would probably make the same
judgment as a matter of policy -- but it certainly undermines Congress's
preferred regulation of commerce.

====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097
Personal Web Page: 
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> <DavidEBernstein at aol.com> 6/6/2005 11:30:15 AM >>>
(3) I predicted the outcome of this case (and think it's remarkable and
a 
testament to his talents that co-blogger Randy got Rehnquist and
O'Connor to vote 
in favor of his clients) on the theory that wavering Justices such as 
Kennedy, who voted with the majority, would be affected by political
trends apparent 
in the United States.  When Kennedy voted with the majority in
<i>Lopez</i>, 
congressional Republicans were making serious (albeit hamhanded)
efforts to 
limit the federal government, and their rhetoric was even more strongly

devolutionary. A decade later, the Republican Congress is vying with
the Democratic 
Congresses of the 1930's and 1960's as the biggest supporter of
increased federal 
power in American history.  Scalia's vote was also likely affected by
the 
sense that the Court should not expend political capital, especially
with new 
Republican nominees soon to be voted on, on trying to limit federal
power without 
any support from the political branches.



Professor David E. Bernstein
George Mason University
School of Law
http://mason.gmu.edu/~dbernste
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