Raich — gay marriage?
Mark T. asks the fair question whether there is any federal statute that one could confidently say this Court would hold unconstitutional. Here’s my candidate: a federal statute banning same-sex marriage. So, I don’t think we should be too quick to say that Morrison and Lopez did nothing of substance. They might even have done some good (I’m in ironic mood. . . .) One other thought occurs to me: should we now call this the Stevens Court? I think the evidence that it is is pretty strong and getting stronger by the Term, notwithstanding recent encomiums to the Chief’s leadership.
I don’t see how this answer is that relevant. It has long been held that Congress can’t pass laws that violate the Bill of Rights, even if the “right” is based on some vague penumbra of a penumbra.
Comment by Half Sigma — June 6, 2005 @ 3:27 pm
I am intrigued by Prof. Barron’s observation that this has become a Stevens court. I have heard others similarly note, but I wonder about the causes of and the evidence for such a, shall we say, transition.
Is it that the absence of the Chief Justice has strengthened Stevens’ prerogative as senior to appoint the majority writer? Or are there other more philosophical reasons that prompt that observation? It hasn’t escaped anyone’s notice that the court has moderated its federalism jurisprudence over the last two to three years, and Raich follows that line.
Comment by Rich Brust — June 6, 2005 @ 3:56 pm
Well, at least we know that if it was couched in the language of a larger “economic regulatory scheme” of, let’s say, interstate trafficing of diamonds, and we had a congressional finding that there was no factor that more influenced an individual’s likelihood of buting a diamond then whther or not they marry, we would have Scalia on board.
Comment by Rob Store — June 6, 2005 @ 6:17 pm
Ashcroft v. Raich – The Supreme Court on Federalism
After trekking through the 9th Circuit, the long awaited decision in Ashcroft v. Raich is finally here. (Along with a concurrence and a dissent or two). Larry Solumn provides a good summary of the arguments here. As is usually the…
Comment by Calblog — June 6, 2005 @ 7:51 pm
I do find no same sex marrige laws as laws that do not comply with the bill of rights, but If congress passes a law, it means in a way that the citizens of the usa passed the law. Due to the fact that they elected the congressmen.
So its Bill of rights versus the genral populas
Comment by Jake Hartman — June 6, 2005 @ 10:23 pm
What If, Judgewise?
So in next year’s hypothetical election, two conservatives and a liberal (and all three Republicans) would face the voters. How would the campaigns shape up?
Comment by Vote for Judges — June 7, 2005 @ 12:02 pm