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Raich Speculation

Again today, the Supreme Court Justices released their opinions and Raich v. Ashcroft wasn’t there.
Now there’s nothing that requires them to release their opinion on a certain date or in a certain order, but they will need to finish up by June (and there’s only 2 more days coming up in which they’ll release opinions: May 2 and 16) [correction: May 16 is now the next possible date, but there are a number of other dates after that]. And there are only a few cases left from the December session (Raich was argued November 29, which was considered the first day of the December session).
Now there could be many uninteresting technical reasons for Raich to be so late, but I thought we could take this time while we’re waiting to do some wild speculating just for fun. So here’s a few of mine:

  1. It’s a very close decision, and it’s taken a lot of internal wrangling to create a majority coalition. The decision will end up 5-4 with some concurring in part and dissenting in part.
  2. The Chief Justice has a strong interest in states’ rights, and therefore wanted to have significant input, but his illness has made that difficult to do in a timely manner.
  3. The Justices have been taking the time to do extra research on medical marijuana and how the government’s FDA approval processes work to understand why it hasn’t gone that route.
  4. The Justices have decided to carve out a specific states’ rights area for medical marijuana (using something like Barnett’s “state sub-class” concept or Kreit’s “economic enterprise” approach) and they’re taking the time to make sure they understand what other areas this new case law will impact.
  5. The Justice writing the majority opinion understands that this will be considered a landmark case in the future, and is taking additional time writing it to make it beautifully written and constructed as well.
  6. The Justices are making a strong case for states rights in Raich (thereby reducing the power of Congress) and want to take the extra time to include some witty rebukes at those in Congress who have been agitating against the Judiciary. (OK, that’s just real wishful thinking on my part)

Now maybe it’s my cockeyed optimism showing through, but in all my scenarios it looks pretty good for Raich (and certainly not a slam dunk for the government).
What do you think? Got any speculations of your own?

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