June 6, 2005

Raich mega-blog, Live 8.

Don't miss the Raich mega-blogging going on over at SCOTUSblog. I'm going to be participating over there too, but I just got off the phone from the Live 8 conference call, which went on for over an hour. I must say that Bob Geldof is incredibly articulate and informed, even when hampered by the flu, as he was. He's trying to get bloggers involved and said he was excited to be talking to bloggers, that it reminded him of "being a hippie in the underground press."

UPDATE: I review what the other participants in the call had to say about it here.


Ron said...

Ann: Since it IS Monday, did you tell Geldorf why you don't like today?

Boomtown Ron

John Stuart said...

Reading Stevens's opinion for the Court, I was struck by this passage:

"Respondents nonetheless insist that the CSA cannot be constitutionally applied to their activities because Congress did not make a specific finding that the intrastate cultivation and possession of marijuana for medical purposes based on the recommendation of a physician would substantially affect the larger interstate marijuana market. Be that as it may, we have never required Congress to make particularized findings in order to legislate, see Lopez, 514 U. S., at 562; Perez, 402 U. S., at 156, absent a special concern such as the protection of free speech, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 664?668 (1994) (plurality opinion)."

It struck me that we are back where we were before Lopez---and that is, back to Carolene Products and footnote 4. So when we are confronted with questions of individual rights, there is a more searching inquiry (or "special concern"); but when we are concerned with the extent of federal power, we apply good ol' rational basis review.

In truth, I think Kennedy and Scalia, whether intentional or not, destroyed much of any federalist legacy Rehnquist will leave as Chief. With this retreat back to the double standard of judicial review, all that really remains of the so-called federalist revival jurisprudence are some inconsistently invoked clear statement and avoidance norms; an ill-defined and most likely symbolic anti-commandeering principle; and a strong line of sovereign immunity cases (but contra Hibbs, Lane, etc), because we all know how important it is to state autonomy and experimentation to shield state entities from money damages when they violate federal antidiscrimination norms.

Count me upset with the footnote four revival and the end of what, at least at one point, looked like the revival of some real judicially enforceable limits on national power. Or maybe I just see the sky falling; but it sure feels like it is.

Ann Althouse said...

John: Rehnquist referred to rational basis review in Lopez. He didn't oust it from the doctrine. And the concurring opinion by Kennedy and O'Connor made a huge deal out of what a minor correction the Court was making in that case.