Comments on: Wednesday’s Opinions http://www.scotusblog.com/wp/wednesdays-opinions/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Raul http://www.scotusblog.com/wp/wednesdays-opinions/comment-page-1/#comment-6690 Raul Thu, 28 Apr 2005 17:53:13 +0000 http://www.scotusblog.com/wp/uncategorized/wednesdays-opinions/#comment-6690 I have been independently thinking what Jacob said, although with different "justice math." I also thought that Thomas would vote against the government on CC grounds, with perhaps O'Connor and (less likely) the Chief. In addition to that I thought that Stevens, Ginsburg, and perhaps Souter, might very well vote against the government on medical necessity grounds. This is because those three signed onto Stevens' concurrence in U.S. v. Oakland Cannabis Buyers' Club, where Stevens said: "whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here." Stevens and Ginsburg seemed fairly sympathetic at oral argument, with Ginsburg even sounding supportive of the Appellees' CC argument at times. Breyer might well have to face up to Stenburg, but, as Jacob said, seemed pretty hostile at oral argument. Therefore, I think something like what Jacob guesses at is not so far-out, although still perhaps a bit unlikely. I have been independently thinking what Jacob said, although with different “justice math.” I also thought that Thomas would vote against the government on CC grounds, with perhaps O’Connor and (less likely) the Chief. In addition to that I thought that Stevens, Ginsburg, and perhaps Souter, might very well vote against the government on medical necessity grounds. This is because those three signed onto Stevens’ concurrence in U.S. v. Oakland Cannabis Buyers’ Club, where Stevens said: “whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here.”

Stevens and Ginsburg seemed fairly sympathetic at oral argument, with Ginsburg even sounding supportive of the Appellees’ CC argument at times. Breyer might well have to face up to Stenburg, but, as Jacob said, seemed pretty hostile at oral argument. Therefore, I think something like what Jacob guesses at is not so far-out, although still perhaps a bit unlikely.

]]> By: Jacob http://www.scotusblog.com/wp/wednesdays-opinions/comment-page-1/#comment-6689 Jacob Thu, 28 Apr 2005 16:21:21 +0000 http://www.scotusblog.com/wp/uncategorized/wednesdays-opinions/#comment-6689 I have a wild hunch. In Stenberg v. Carhart, 530 U.S. 914, as I read it, Justice Breyer laid out the principal that the constitution doesn't allow the government to second-guess doctors on a patient's medical need. That opinion stands in sharp contrast to Justice Breyer's comments in oral argument suggesting that if terminally ill patients have a real need to use marijuana to relieve their pain, they must petition the federal government to change the rules. Here is what I think happened: The first tally had only Justices O'connor and Thomas (maybe the Chief Justice as well) voting against the government, as Justices Kennedy and Scalia indicated in oral arguments that they were inclined to apply Wickard to this case. Justice O'connor later called Justice Breyer (and Justice Souter, who expressed similar sentiments at oral argument) on their inconsisitency between their comments at oral argument and the majority opinion in Stenberg. Enough justices switched their vote to affirm, with at least five justices voting to overturn the law on either commerce clause grounds or substansive due process grounds. (Note: As both positions likely didn't gain five votes on their own, Raich will probably have no precedential value). I have a wild hunch. In Stenberg v. Carhart, 530 U.S. 914, as I read it, Justice Breyer laid out the principal that the constitution doesn’t allow the government to second-guess doctors on a patient’s medical need. That opinion stands in sharp contrast to Justice Breyer’s comments in oral argument suggesting that if terminally ill patients have a real need to use marijuana to relieve their pain, they must petition the federal government to change the rules.
Here is what I think happened: The first tally had only Justices O’connor and Thomas (maybe the Chief Justice as well) voting against the government, as Justices Kennedy and Scalia indicated in oral arguments that they were inclined to apply Wickard to this case. Justice O’connor later called Justice Breyer (and Justice Souter, who expressed similar sentiments at oral argument) on their inconsisitency between their comments at oral argument and the majority opinion in Stenberg. Enough justices switched their vote to affirm, with at least five justices voting to overturn the law on either commerce clause grounds or substansive due process grounds. (Note: As both positions likely didn’t gain five votes on their own, Raich will probably have no precedential value).

]]> By: Gerard http://www.scotusblog.com/wp/wednesdays-opinions/comment-page-1/#comment-6688 Gerard Wed, 27 Apr 2005 16:24:41 +0000 http://www.scotusblog.com/wp/uncategorized/wednesdays-opinions/#comment-6688 Care to speculate on what is going on with Raich v. Ashcroft? I recall Marty posting at the time of argument that this was a slam-dunk for the government? Gerard Care to speculate on what is going on with Raich v. Ashcroft? I recall Marty posting at the time of argument that this was a slam-dunk for the government?

Gerard

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