It’s Jim Lindgren at Volokh Conspiracy this time…
The beginning of the post is a glance at a new study that purports to be able to predict Supreme Court decisions based on the number and tenor of questions asked in the oral arguments. And the numbers correlate fairly well to rule against the party that gets the most questions.
If so, as Jim notes, that would bode poorly for Raich, as Barnett got a lot more questions than the government (although I think that the tenor of them was not so certain).
Of course, the problem with such a method is that it really can hold true only in cases where the Supreme Court has pre-decided the outcome (and it may, in fact, be an indication that most cases are pre-decided and oral arguments have little value). If the Justices had not yet reached a majority in Raich, then the number of questions in oral is probably irrelevant.
Jim goes on to look back again at Wickard and does a good job of getting to the nub of the issue in Raich (something I’ve discussed before).
Reading Wickard, which is a pretty weakly reasoned case by my lights, reminds me that the Supreme Court is in a bind in Raich. Either the Court has to follow the Constitution and strike down federal drug regulation of intrastate noncommercial uses of marijuana (a controversial decision to follow the rule of law), or it has to expand Wickard radically, rendering the Commerce Clause almost (though not quite) a dead letter. Stated another way, the Court either has to expand its federalism jurispridence slightly (eg, Lopez & Morrison, but in the controversial drug area), or it has to limit Lopez & Morrison to their facts by radically expanding federal power under the Commerce Clause. It can’t stand still. Perhaps that is why the Court has been so slow to render an opinion.
This is the point, I think, that many miss. Voting for the government is not a vote to continue things as they are — it is, in fact, a potentially dramatic expansion of federal power. Voting for Raich might seem, on the surface, a radical action, yet such a decision could be narrowly tailored. Tough one.
… and our next possible chance to find out is Monday.