The silent Justice Kennedy.

I've written about Justice Scalia's opinion in Raich, but what about Justice Kennedy? A colleague of mine emails: shouldn’t I be asking if he’s been hypocritical? He is flying under the radar, compared to Justice Scalia, the other member of the Lopez and Morrison majority who voted with today’s majority. Unlike Justice Scalia, Kennedy did not write a separate opinion. And unlike Justice Scalia, he tends to be thought of as less hard line about federalism matters. But Justice Kennedy wrote a strong federalism dissent in Hibbs (the Family and Medical Leave Act case), where the Chief Justice and Justice O’Connor both voted in favor of federal power. And he's been the needed fifth vote in the federalism-enforcing cases of the last seventeen years.

So let’s think about Justice Kennedy for a moment. Kennedy’s agreement with the majority today seems consistent with the beginning of the concurring opinion he wrote in Lopez:

The history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power. That history gives me some pause about today's decision, but I join the Court's opinion with these observations on what I conceive to be its necessary though limited holding.

The message here is that Congress has broad power to regulate the national market and that the Lopez case should not be taken as a major disturbance of settled assumptions.

But in the end of his Lopez concurrence, Kennedy, more than anyone else on the Court, professed respect for areas of traditional state concern and the role of the states as “laboratories of democracy”:

While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.…

The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term.

Justice O’Connor joined that Lopez concurring opinion. As the author of today’s principal dissent, she cites Kennedy’s Lopez dissent five times. She extols the role of the states as policy experimenters:

One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

Justice Kennedy built his Lopez dissent upon that classic Brandeis idea. The opinion he silently joins today never examines the question from this viewpoint. At the very least, he ought to have resisted merging with the group of Justices who dissented in Lopez and Morrison.

I presume if he had come forward, he would have emphasized the general rule that Congress has broad, well-established power to regulate markets and that, when Congress is operating in that mode and not meddling with matters not part of a web of interstate buying and selling, it just doesn't matter that the states have some interesting policies they'd like to experiment with. Congress has chosen its policy, pervasively regulating the market, down to its tiniest components, and federal supremacy means that the congressional policy choice prevails over that of the states.

If that's the answer and if that is supposed to convince those of us who take the Brandeisian laboratories of democracy idea seriously, then he ought to have put it in writing.