Comments on: The Rehnquist Court and the Mathematics of Federalism

By: A Copyfighter's Musings

A Copyfighter's Musings — Wed, 08 Jun 2005 06:13:49 +0000

Eldred in Light of Raich

The Supreme Court delivered its decision in Gonzales v.

By: Matt

Matt — Tue, 07 Jun 2005 05:06:18 +0000

I’ve never been sure about why the political branches listen to the court. It seems to me that about 1/3 of the time they are wrong.

By: Stan

Stan — Tue, 07 Jun 2005 01:30:02 +0000

Doesn’t the constitution now violate the commerce clause?

By: Chris

Chris — Tue, 07 Jun 2005 01:13:22 +0000

I think it supports the political legitimacy of the Court to refer to the rulings of the majority as an institutional decision rather than as the decision of 5 individuals. When five Justices speak, the Court speaks, and the law is what the law is (no matter who wins the most rhetorical style points, and no matter what we may personally believe was the right or wrong result).

When Bush v. Gore came down, critics didn’t attack the Court, but rather the Justices that joined the majority opinion. By framing the argument as what five bad Justices did, critics managed to do far more harm to the institution than had they said the Court as a whole had screwed up (now, those critics may place the blame for that damage on the five Justices, but that debate is for others).

Of course, this all hinges on whether the political legitimacy of the Supreme Court is something we actually want to uphold.

By: Paul Allen

Paul Allen — Mon, 06 Jun 2005 23:27:39 +0000

The adoption of the same old commerce clause reading should not surprise anyone who listened to Randy’s oral arguments.

He did not argue against any provision of the traditional commerce clause doctrine per se. Instead he argued for an exception to the standard doctrine.

That was a bit of a splitting-hairs avenue to pursue. The court was probably right in deciding that Randy’s argument was driving at a false dichotomy.

I estimate that the only way these challenges to Federal law have a chance is to admit they are covered by the existing commerce clause doctrine and act as a counter-example for why that doctrine is an abusive construction of the constitution.

By: The Volokh Conspiracy

The Volokh Conspiracy — Mon, 06 Jun 2005 22:41:50 +0000

The Rehnquist Court and the Mathematics of Federalism:

Ernie Young’s post at SCOTUSBlog raises a good point: while commentators tend to refer to “the Court” as a single entity, the Supreme Court consists of nine peo…