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| Re: Did the Chief participate in Raich? |
MartyL |
May 27, 2005 04:24 am |
Funny you should mention that. I was just wondering the same thing myself -- not whether the Chief participated (he did), but about how it can be that Stevens or Souter is (presumably) writing. I'm on the record as predicting that Raich would be 9-0 or 8-1 (depending on whether the separate Thomas opinion is a dissent or a "We should overrule Wickard at the earliest opportunity" concurrence). But I have a hard time imagining the Chief assigning even a unanimous opinion in this case to JPS or DS, for fear that they would write stuff about Lopez and Morrison that couldn't hold a Court.
Which raises the intriguing possibility that the Chief is actually in dissent, either (i) because he voted to invalidate the law as applied, or (ii) because, although the Chief would *sustain* the law, Stevens (presumably no fan of the *policy* behind enforcement of the law in this context), cobbled together five votes for *invalidation*, on the theory of "I continue to believe that Lopez/Morrison were wrongly decided, but as long as five of my colleagues continue to insist that they are the law, this is the sort of ridiculous result to which their logic leads." I find both of these scenarios implausible (the latter much more than the former); but I don't know quite how else to explain it if JPS or DS is writing.
Full disclosure: I am not a clerk, greedy or otherwise. And I did some minor work on the case in the lower courts when I worked at DOJ.
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