Justice Kennedy’s Vote in Raich:
In his National Review piece on Raich, Randy Barnett suggests that Justice Kennedy’s vote in the case was hard to explain:
Veteran Supreme Court reporter Lyle Dennison has suggested that Justice Kennedy [voted to reverse in Raich because he] has a zero-tolerance 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. . . . How [Kennedy] 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.
But is Kennedy’s vote in Raich really such a mystery? Justice Kennedy broadcast a decade ago in his Lopez concurrence that while he valued federalism, and he was going to enforce federalism values in a number of contexts, he was not going to favor any positions that upset the basic settled view of the scope of the Commerce Clause:
[T]he Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.
I realize that Randy believes his argument in Raich successfully distinguished Wickard v. Filburn, such that it was possible to rule in his favor without overruling any cases. But the relevant question is not whether Raich can be distinguished from Wickard on its facts; the question is whether Randy’s argument in Raich could comfortably coexist with the settled broad understanding of the Commerce Clause that Wickard helped cement. On the latter question, I think the answer is plainly no. The Raich case asked the Court and Justice Kennedy to shift the settled understanding of post-Wickard Commerce Clause doctrine in a very real and important way. Justice Kennedy indicated in 1995 that he was going to decline such an invitation, and that’s exactly what he did a decade later in Raich.
(Cross posted at the Volokh Conspiracy)