Ashcroft v Raich speculation from scotusblog.com

[Kharn]

I was wondering what was happening with Raich (intrastate medical marijuana vs federal laws on interstate commerce) and decided to do some googling, this page turned up and I found it interesting (and pretty recent, it was posted today):
scotusblog.com source

The December Sitting, Revisited
Posted by Tom Goldstein at 11:40 AM

Having talked this through with various people (including particularly Marty) and looked more at the argument transcripts and related opinions, I'm now slightly revising my assessment of who is writing in the December sitting.

I made my original pointless and unsubstantiated prediction here.

Whereas I previously guessed that Souter was writing in Raich, my thinking is now that there are two opinions: one by the Chief and one by Souter (concurring, joined by the Lopez dissenters). Whether the Chief has a majority or instead a plurality (so designated because it would be a narrower opinion for reversal than an opinion per Souter) depends on whether any of the Lopez majority voted to affirm the Ninth Circuit. My sense remains that the hold-up in the case remains Justice Souter, rather than a contentious victory for those defending the California statute.

Previously, I had discounted the possibility of the Chief as the author of the principal opinion because he already wrote once in this sitting (Muehler v. Mena, decided Mar. 22) and wrote two opinions in the October sitting (Kowalski v. Tesmer and Leocal v. Ashcroft). I now think that because the Chief did not write in the November sitting, he would have felt comfortable assigning himself a second opinion (i.e., Raich) from the December sitting.

I remain blameless for my remaining baseless conjecture -- that Justice Souter has Miller-El and that Justice Stevens has Livestock Marketing (it's virtually a coin-toss given that they both previously wrote in the previous commodity promotion cases) -- unless and until by chance they (like my insightful and reasoned prediction that Justice Kennedy had the wine cases) come true.

And some previous speculation:
scotusblog.com from earlier this month

He [Kennedy] is a likely author for Raich if, as most people assume, the government is going to win, because in the predecessor Oakland Cannabis case Justice Stevens wrote and Justice Souter joined an opinion expressing some sympathy for medical marijuana use.
[...]
Here is my best bet, emphasizing it is just a guess. I bet that Justice Souter has Raich and is writing a lengthy, historical discussion of the Commerce Clause.

I'm not too sure on the legalese, but seems like its leaning more towards medicinal marijuana than an all-dominating commerce clause.

In case you're wondering why this is important, the Stewart case (homemade MGs) is very similar to this one.

ETA:
Since he mentions the Lopz case, I looked up the split, it was:
Majority: Rehnquist, O'Connor, Scalia, Kennedy and Thomas.
Dissenting: Stevens, Souter, Breyer, Ginsburg
I wonder what side Scalia and Thomas will fall on for Raich.

Kharn

 

[publius]

Oral arguments suggest Scalia is going for the big government interpretation of the commerce clause.

Randy Barnett, law professor from Boston University, argued on behalf of Raich. He was allowed a minute to introduce his argument and was then continually peppered with hostile questions. Barnett said there was no "economic activity" in the case, but one justice after another would challenge that statement. "If the feds could reach the wheat used on a farm in Wickard," Scalia kept asking, "why not marijuana consumed by patients in California?"

 

[publius]

Background for those unfamiliar

Judge Kozinski from the 9th wrote a great opinion stating that a homegrown machine gun for personal consumption is not interstate commerce. See it here:

http://caselaw.findlaw.com/data2/circs/9th/0210318p.pdf

The Justice Dept has submitted a cert petition asking that the Court decide Stewart's case based on the outcome of the Raich case.

http://www.mp5.net/info/wilson.pet.app.pdf

 

[Kharn]

Oral arguments suggest Scalia is going for the big government interpretation of the commerce clause.

Doesnt Scalia have a history of playing devil's advocate?

And, anything limiting the commerce clause is a good ruling, regardless of if the conservative justices are on the "right" side or not.

Kharn

 

[publius]

Scalia may have been testing the limits.

But I didn't like this from your post:

Whereas I previously guessed that Souter was writing in Raich, my thinking is now that there are two opinions: one by the Chief and one by Souter (concurring, joined by the Lopez dissenters).

We won Lopez. The dissenters are the least likely to be on our side in a commerce clause challenge. Put them on the same page with Souter and the chief, and I'm pretty sure I'm on the other page.

We'll see when they announce their decision, I guess.

 

[Kharn]

Yeah, we will definitely have to wait and see.

I'd expect the liberals would be more open to allowing medicial marijuana than the conservatives, so we could see them limiting the feds for this one and it just happens to apply to Stewart as sort of an unintended consequence.

But, there's also the possibility of the Lopez majority voting with the Chief Justice and having a greater split than 5 to 4 due to the two concurring opinions.

Kharn

 

[publius]

http://federalism.typepad.com/ashcroft_v_raich/

The New York Times editorial board has stated its position on Ashcroft v. Raich. Its conclusion:

Although the California women should win, it is important that they win on narrow, fact-specific grounds. Advocates of states' rights have latched onto this case and are urging the court to use it to radically rewrite its commerce clause rulings, reviving ancient precedents that took a more limited view of Congressional power.

They still might not apply Raich to Stewart. Who knows what kind of weird lines they'll draw?