June 06, 2005

Kennedy's silence

by Guest Contributor

[Jed Sorokin-Altmann] There are two interesting posts in the blogosphere that discuss Justice Kennedy not writing an opinion in Raich.

The first posting comes from Lyle Denniston over at SCOTUSblog, in which he muses that Justice Kennedy might just be strongly against drugs, period. I was particular interested in his reference to the oral argument in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, because I went to college with Lindsay Earls. She's not a druggie now, nor was she one then, and she deserved far better treatment and far more respect from the Court than Kennedy afforded her. I don't know is Denniston is on to something or not about Kennedy's person views towards, but it's interesting to muse about.

The second posting comes from Ann Althouse over at her blog, Althouse. She wonders why Kennedy ruled the way hid did, given his concurrence in Lopez:

While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.…

The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term.

Althouse is right, it is is indeed curious that today, silently, Justice Kennedy has agreed with the justices who dissented in Lopez and Morrison.

June 6, 2005 09:26 PM | TrackBack

Don't forget that the revised legislation to get around Lopez, in which Congress required a nexus between interstate commerce and the gun in question (so either it or its component parts had to have moved in interstate commerce) still hasn't been struck down. Indeed, the necessity of interstate commerce for Congressional legislation means that the 9th Circuit had to overturn the conviction of a man under federal law for possessing a machinegun, because he'd built it himself at home with no interstate commerce involved.

Posted by: PG at June 6, 2005 11:33 PM
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