Posted by Orin Kerr:
Justice Kennedy's Vote in Raich:
http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118332759
In his [1]National Review piece on Raich, co-blogger Randy suggests
that Justice Kennedy's vote in the case was inexplicable:
Veteran Supreme Court reporter [2]Lyle Dennison has suggested
that Justice Kennedy [voted to reverse in Raich because he] has a
zero-tolerance approach to drugs. Justice Kennedy's deportment
during oral argument supports that theory, but we will never know
because he joined the majority opinion without comment. . . . How
[Kennedy] reconciles his expressed support for the traditional
law-enforcement role of the states with his joining what can only
be described as the opposite view expressed by Justice Stevens only
he can say. But he chose not to.
But is Kennedy's vote in Raich really such a mystery? Justice
Kennedy broadcast a decade ago in [3]his Lopez concurrence that while
he valued federalism, and he was going to enforce federalism values in
a number of contexts, he was not going to favor any positions that
upset the basic settled view of the scope of the Commerce Clause:
[T]he Court as an institution and the legal system as a whole have
an immense stake in the stability of our Commerce Clause
jurisprudence as it has evolved to this point. Stare decisis
operates with great force in counseling us not to call in question
the essential principles now in place respecting the congressional
power to regulate transactions of a commercial nature. That
fundamental restraint on our power forecloses us from reverting to
an understanding of commerce that would serve only an 18th century
economy, dependent then upon production and trading practices that
had changed but little over the preceding centuries; it also
mandates against returning to the time when congressional authority
to regulate undoubted commercial activities was limited by a
judicial determination that those matters had an insufficient
connection to an interstate system.
I realize that Randy believes his argument in Raich successfully
distinguished [4]Wickard v. Filburn, such that it was possible to rule
in his favor without overruling any cases. But the relevant question
is not whether Raich can be distinguished from Wickard on its facts;
the question is whether Randy's argument in Raich could comfortably
coexist with the settled broad understanding of the Commerce Clause
that Wickard helped cement. On the latter question, I think the answer
is plainly no. The Raich case asked the Court and Justice Kennedy to
shift the settled understanding of post-Wickard Commerce Clause
doctrine in a very real and important way. Justice Kennedy announced
in 1995 that he was going to decline such an invitation, and that's
exactly what he did a decade later in Raich.
References
1. http://www.nationalreview.com/comment/barnett200506090741.asp
2.
http://www.scotusblog.com/movabletype/archives/2005/06/commentary_just.html
3. http://straylight.law.cornell.edu/supct/html/93-1260.ZC.html
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=volpage&court=us&vol=317&page=127
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