HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, May 31, 2005

Raich Opinion - Still Waiting

Marty Lederman of SCOTUSblog has been thinking about why the Raich case (the medical marijuana case) has yet to be issued.  He states,

As Tom has previously written, only two cases (Raich and Miller-El) remain pending from the "December" sitting; and Justices Stevens and Souter have yet to write majority opinions from that sitting. This is odd, because -- as I wrote on the "Greedy Clerks" board earlier today -- it is unlikely (but not out of the question, cf. Sabri) that the Chief Justice would assign Raich to be written by Justice Stevens or Justice Souter. Even if my earlier prediction is correct -- i.e., that the Government will win Raich 9-0 or 8-1 (depending on whether Justice Thomas writes a dissent or a concurrence hinting that Wickard v. Filburn should be overruled) -- I have a hard time imagining the Chief assigning even a unanimous opinion in the case to JPS or DS, because of the risk that they would write about Lopez and Morrison in a way that could not hold a five-Justice Court.

Therefore, I raised the possibility that perhaps the Chief Justice is actually in dissent, either (i) because he has voted to invalidate the statute as applied, or (ii) because, although the Chief Justice would sustain the law, Justice Stevens (presumably no fan of the policy decision to enforce of the law in this context -- see his concurrence in Oakland Cannibis Buyers' Co-op), has cobbled together five votes for invalidating the Act as applied, and is writing an opinion along the lines of: "I continue to believe that Lopez/Morrison were wrongly decided, but as long as five of my colleagues continue to insist that those cases are the law, their logic leads to the conclusion that the CSA is unconstitutional as applied here . . . ."

As I wrote in that post, I find both of these scenarios implausible (the latter much more than the former) -- which leaves me scratching my head. (Not that that's a bad thing -- this arm-chair speculation is only fun because the Court is not perfectly transparent, and occasionally throws a curveball.)

I am surprised as well that the case has not been decided.  June is always an exciting month for court watching -- and this one may be particularly so.  [bm]

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