Tom Goldstein at SCOTUSblog does some guesswork on who might be authoring the four remaining cases from the December calendar (including Raich), based on past history of the court.
Some brief excerpts:
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.
Here is my best bet, emphasizing it is just a guess. I bet that Justice Souter has Raich and is writing a lengthy, historical discussion of the Commerce Clause. […]
Interesting. 13 days until the next possible decision date. Maybe we’ll find out then.
Note: Here are some of Stevens’ words (joined by Souter and Ginsburg) from his concurrance in US v. Oakland Cannabis Buyers’ Collective. (The court ruled 9-0 that there was no federal medical necessity defense for distributors of medical marijuana within the CSA, but Stevens, Souter, and Ginsburg wanted to keep the door open in other ways.)
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. This case does not call upon the Court to deprive all such patients of the benefit of the necessity defense to federal prosecution, when the case itself does not involve any such patients.
That sounds like a position that would be open to carving out a place in the commerce clause for medical marijuana.