Who’s Writing Raich? Another Possibility
on May 27, 2005 at 5:15 pm
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.)
An astute observer writes, however, to raise another very intriguing possibility: Justice Souter was assigned to write the majority opinion in Johanns (the beef case); but he lost the votes of two Justices from among the Chief Justice and Justices Scalia and Thomas. Upon reflection, I think this may be the most likely scenario. Justice Souter’s Johanns dissent begins as if it were once a majority opinion. And, based on the oral argument, I’d say it’s not at all inconceivable that five Justices originally voted to strike down the beef statute because the attribution to the government was not sufficiently transparent (the principal theory of Justice Souter’s opinion) — but that two Justices were then persuaded that the possibility of false attribution is not grounds for invalidating the statute on its face (as Justice Scalia’s opinion concludes).
If this theory is right, then I think the Chief Justice himself would be writing Raich, and Justice Stevens would be writing Miller-El. (For another possibility, see Tom’s earlier post.)
[UPDATE: Another careful observer wonders whether perhaps it was not Justice Souter, but Justice Stevens, in Muehler v. Mena, who lost a December majority opinion when Justice Kennedy switched his vote over to the broader rationale of what was the Chief Justice’s concurrence, thus making the Chief’s opinion the majority opinion of the Court. Justice Kennedy’s concurrence, which essentially explains why he is sympathetic to, but did not join, the Stevens opinion, seems a bit as if it’s an apologia. I’m a bit skeptical, because Justice Stevens’s Muehler concurrence doesn’t read to me as if it were originally a majority opinion. But if this observer is correct, it would mean that Justice Souter would likely be writing Miller-El, with Raich penned by the Chief Justice.]
[P.S.: This should go without saying, but in an abundance of caution: This tea-leaf reading is, of course, just that — complete conjecture, no more reliable or informed than actual tea-leaf reading. But as parlor games go, it’s an entertaining diversion as we await the Court’s decision (which may come as soon as Tuesday).]
