June 10, 2005
Raich Around the Clock
Veteran Supreme Court reporter Lyle Dennison has suggested that Justice Kennedy has a zero-toelrance 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. In Lopez and Morrison, Justice Kennedy offered concurring opinions that rested his decisions on a respect for the traditional functions of states, rather than on original meaning. Much of our brief was devoted to this issue, which, if anything, was stronger here — where states have affirmatively acted to protect the health and safety of their citizens — than it was in either Lopez or Morrison. How he 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.Orin Kerr defends Kennedy, arguing that Kennedy's Raich vote was consistent with his concurrence in Lopez. Barnett responds, noting that if that was what Kennedy had in mind when he joined the majority (the only justice signing on to Stevens's opinion who also voted for Lopez), he should have written a concurring opinion saying so.
Kerr also defends Scalia against certain charges, citing Kyllo (once again, as I did) and also United States v. Booker. Those cases cut against Kerr's defense of Kennedy, though-- Kennedy silently joined the anti-drug side in both of them.
What Scalia is hung up on, I think, is how and when to defer to stare decisis, and when, instead, to overturn precedent. Barnett writes:
Raich does nicely illustrate why originalists need not be too bothered with the charge that they would reverse "precedent." The four dissenters in Lopez continued to dissent five years later in Morrison and maintained their opposition to Lopez even ten years later in Raich. During oral argument I confronted the same arguments made by Justices Souter and Breyer in their Lopez and Morrison dissents long after they had been rejected the Court... To insist that originalists must follow precedent when no one else does (when they don't want to) is less than compelling.
I similarly wrote earlier this week (in the column that I've now linked to three times in this one post):
By leaving it to judges to decide what constitutes a circumstance extraordinary enough to warrant reconsidering a precedent, the prevailing stare decisis standard invites the sort of mischief that Scalia is fond of warning against: it encourages judges to pick and choose the precedents they target according to their own policy preferences.What I didn't say, because I wasn't sure about the answer, is whether there's any objective standard for when to reconsider precedent. Barnett offers this nugget:
We asked the Court to reverse Wickard if it thought it was a barrier to ruling for us (this was included especially for Justice Thomas who won't reconsider precedent unless specifically asked) but we honestly did not think that reversing Wickard was at all necessary."Justice Thomas... won't reconsider precedent unless specifically asked." Intuitively, that seems like exactly the right approach. The benefits of strong stare decisis are mostly preserved, at least in the medium term: The rules change only fairly slowly, similar cases are treated similarly (at least until the composition of the Court changes completely), relitigation is limited, etc. The benefits of weak stare decisis are available: Unconstitutional rulings are not locked in. And whether or not a party to the case specifically asks to have precedent reconsidered is about as objective a standard as I can think of. Had Scalia followed it-- that is, had he answered the invitation to reconsider Wickard-- he might well have ruled the other way.
(Thomas, by they way, didn't so much reconsider Wickard as interpret it in the context of several other cases and conclude that the precedents argue for considering specific claims on a case-by-case basis rather than for alway following the logic of Wickard. See the fourth paragraph of section II-B in his dissent, if you're interested.)