June 10, 2005

Barnett on Raich (tip to VC)

Randy Barnett, a co-blogger at the Volokh Conspiracy and counsel for Raich and Monson in Gonzales v. Raich, has a piece up on NRO that gives a post-game analysis from his perspective. As always, he manages to point out libertarian-ish nuances that mainstream legal opinion overlooks. In this case, he points this out:
    I note something overlooked by all coverage of the case I have seen. Justices Rehnquist and Thomas both declined to join the paragraph in Justice O'Connor's dissent in which she expresses her disagreement with the state medical-cannabis laws. This does not necessarily mean that these two justices agree with the Compassionate Use Act, but it does mean that they explicitly refused to go on record against it. Contrast this with Justice Thomas's condemnation of the Texas anti-sodomy law in his dissent in Lawrence v. Texas.
To join only in part takes more work than to join in entirety; that means both Rehnquist and Thomas explicitly did not want to be associated with the paragraph where O'Connor says she disagrees with the medical marijuana statute in California and would not have voted for it.

He ends on an incredibly topical note:
    But Gonzales v. Raich has placed the future of the New Federalism in doubt, which makes future appointments to the Supreme Court all the more important. Will the president name someone who, like Justice Thomas, is truly committed to federalism? Or will his nominee be a fair-weather federalist, as Justice Scalia has turned out to be when the chips were down?


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