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Have we squeezed every last drop of Raich speculation? No.

Let’s recycle some speculation. It’s fun, and helps pass the 14,515,200 seconds that have slipped by while waiting for the Supreme Court to rule on Raich (that’s 168 days for the rest of you).
Larry wrote today and asked

“Kennedy wrote the wine case decision. Is that good news for Raich?”

Larry was referring back to my May 3 post, where I linked to speculation by Tom Goldstein of SCOTUSblog regarding the authorship of the remaining cases:

Three Justices have not published majority opinions from the December sitting and therefore are presumably the authors of three of the four remaining cases: Stevens, Kennedy, and Souter. […]

Stevens, Kennedy, and Souter were among the most active Justices at all four arguments. Each of them has expertise or recent experience with the issues in more than one of the cases. […]

[Kennedy] is a likely author for Raich if, as most people assume, the government is going to win, because in the predecessor Oakland Cannabis case Justice Stevens wrote and Justice Souter joined an opinion expressing some sympathy for medical marijuana use.

So now we know that Kennedy wrote the decision on the wine case that was released today, so… it’s possible to speculate that Souter or Stevens may be writing the majority opinion in Raich. If so… it’s hard not to think back on the concurrance in US v. Oakland Cannabis Buyers’ Collective, written by Stevens and joined by Souter and Ginsburg:

Most notably, 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. […]

The overbroad language of the Court’s opinion is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union. That respect imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a State have chosen to “serve as a laboratory” in the trial of “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). In my view, this is such a case. By passing Proposition 215, California voters have decided that seriously ill patients and their primary caregivers should be exempt from prosecution under state laws for cultivating and possessing marijuana if the patient’s physician recommends using the drug for treatment.

Sounds potentially promising.
The only other remaining cases from the December sitting:

  • Miller-El v. Dretke on Batson and race-based preemptory challenges
  • Veneman v. Livestock Marketing Ass’n (and 1 other consolidated case) on commodity promotion programs and the government speech doctrine.

I’m sticking with my prediction given on my Raich page: Unanimous decision for Raich (OK, what I really said was 8-0 because at the time, I thought the Chief might be out). I’m sticking with it partly to be ornery (I gave it, perhaps overly optimistically, but I’m not giving in to peer pressure), and partly to be able to stick it to everybody else if it actually went that way.
Note: Some people have asked me how I know when the next possible date is that there could be a decision. Simple. It’s on the Supreme Court Calendar (pdf)
Next possible dates: Monday, May 23; Tuesday, May 31; Monday, June 6; Monday, June 13; Monday, Jun 20; Monday, June 27.
Update: Tom Goldstein reminds me in comments that if the Justices run out of dates in June and haven’t finished all their opinions, they’ll add more dates on the fly.
Further Update: Tom revises his authorship speculation. Could the Chief be writing?

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