Professor Bainbridge...on law, politics, religion, culture & food

I don’t have a strong opinion as to whether Koh would make a good supreme court justice or not.  But much of what you have here is pretty week and, I think, benieth you.  The NRO bit about sharia law is a typical bit of NRO garbage- no quote, no context, and so on.  It hardly even mounts to hearsay, being more of a slur.  Why repeat it without something more?  As is, it’s just a slur and not worthy of you.  It’s also far from obvious that there was any ‘accademic freedom’ issue in the Camara case as well.  Camara, who can hardly claim to have suffered for his immature use of biggoted words, was able to present his piece and have it published in the Yale Law Review.  (I’m told it was, in the end, a pretty weak piece as well.) Koh merely expressed disaproval of someone who has acted as a biggot.  Where is the accademic freedom issue?  It may be that Koh would be a bad justice.  But these aspects don’t show it and it doesn’t do you well to present the case as such. 

PB REPLIES: I’d comment on your spelling, but people in glass houses shouldn’t throw rocks and all that. Anyway, throw out all the NRO stuff and you still have a documented track record of a far left ideologue whose presence on the short list of most Democratic presidential candidates deserves scrutiny.

So he’d be an “activist” for the left not seen since Brennan - but haven’t we had “activists” for the right ever since Rehnquist made his way onto the Court?

As to his actions w/r/t Camara - couldn’t he as Dean have taken more steps to keep Camara off the campus if he really was so violently anti-"academic freedom”?  He didn’t, though.  Instead, he protested that a group of supposedly thoughtful, intelligent Yale students would make the decision to bring someone who couldn’t make the simple promise not to use the word “nigger” (or “nig") in the future.  Really, for a person born in the mid-1980’s, it should *not* be a chore to avoid using that word - and that attitude, and the lack of actual remorse that Camara showed at the time, was worthy of protest.

To participate in such protest is not called “p.c.” It’s called having an understanding of the long and shameful history associated with the word and taking symbolic action against those who use the word (Camara) as well as those who support that use (whoever brought Camara to campus).

Shouldn’t you note that Koh himself isn’t being quoted as saying that “sharia law, among other foreign laws, could have applicability within the United States in certain circumstances” and point out that there is only the letter of a single person to suggest he ever said such a thing? Wouldn’t this be out of character for someone who, according to the Yale article, refused to shake the hands of the Taliban’s American ambassador in 2001?

I used to think this was one of the more enlightened right-leaning blogs. But this is beyond shameful. I’d expect this over at Michelle Malkin’s site but not here.

PB REPLIES: Why? If Koh’s on the short list for the SCOTUS if a Dem wins in ‘08, it’s time to start thinking about what that might mean. And his record is pretty scary for anybody who believes in the rule of law. Koh is a ideologue of the left whose track record suggests he’d have made an ideal member of the Warren Court.

Interesting comments… cough.  Seems the internet left has concerns that a right/centrist law prof has concerns about a left law prof that may or may not be on a short list if a leftie wins the White house in 2008.  So far, and typically so, their pre-buttal seems a bit weak… or is it week?

PB:

I expected you to say that a Democrat in the White House is entitled to his choice to fill a SCOTUS opening—that’s what being president is all about.  That was certainly the sort of rhetoric we heard when Roberts and Alito were nominated by Bush II.  Are the rules different for Democratic presidents?

PB REPLIES: I guess you missed my take on the filibuster of judicial nominations. http://www.tcsdaily.com/article.aspx?id=052605G

I wrote back then that :"what happens if President Hillary (with a 50-50 Senate split) nominates somebody like Larry Tribe or, worse yet, Margaret Marshall to the Supreme Court? Wouldn’t it be handy to still have the filibuster around then? Sure, the Democrats could pull the nuclear option, but, again, why should the GOP pave the way?”

“I’ve been as critical of Democrat obstructionism as anyone. But even in the unlikely event that pulling the trigger on the nuclear option would have guaranteed that every one of President Bush’s current and future nominees ultimately would have passed a confirmation vote, the cost in terms of both principle and long-term advantage still would have been too high.”

Prof. Bainbridge,

I have to agree with theprevious posters- I am shocked by the lack of analysis in your post, and your use of typical scare tactics. The employment of the sharia quote alone (not attributed to Koh) is enough to doubt the credibility of this post. Usage of international law as a guide (not as a binding precedent) is controversial, but is not a determinitive factor, as you appear to be believe, in judicial nominations. As for sharia- do you really believe that an avowed liberal like Koh will be looking to sharia as a guide to his jurisprudence? Or did you throw that in there as a gratuitous cheap shot?

On a more substantive level, is it not the right of a Democratic president to nominate a SCt. justice who blieves in many of the same things that s/he does? For example, I disagree or a normative level with the outcomes (and the process used to come to them) of many of the rulings of both Alito and Roberts, yet I understand both their theory of jurisprudence and I believe that they came to their results in a principled manner. I believe the same can be said about Koh- clearly he is a first rate legal mind. You may disagree with him, but unless you now believe that there is always only one correct way to to have a principled decision in a case, I am not sure where you are coming from. ‘The rule of law’ is not owned by members of the federalist society, or, for that metter, by Republican administrations.

You’re right about my spelling, especially later in the night after a glass or two of wine!  (It’s an on-going battle.) As I said, though, I don’t have a strong opinion about whether Koh would be a good justice.  It’s perfectly reasonable to argue, as you do in part here, that he’s too ideological or politically extreme.  He might be.  Even as someone on the left I might well like someone else more.  I’ve not considered candidates.  But the NRO stuff as well as the supposed ‘academic freedom’ issue were silly slurs without substance, not up to your normal standards.  I wish you’d left them out. 

PB REPLIES: Fine. Leave out the NRO stuff. You still have the concerns about Koh’s hostility to American exceptionalism identified by serious people like Rosen and McGinnis. You still have the Yale Daily News reports on the general climate at Yale. You still have his own stated views on the war on terror. Put together, it’s a package that is troubling.

Actually Jason, we haven’t had any “activists” on the Right on the Court.  An “activist” on the Court is someone who perverts the rule of law, democracy, and the text of the Constitution in order to reach particular results that happen to jibe with his/her own personal policy preferences.  Someone who seeks to resist or even reverse this trend is no more an “activist” than a firefighter is an “arsonist but just on the other side.”

Harold Koh is the jurist we will be getting when the Bainbridges of the world throw hissyfits at the flaws of all the Republican candidates and refuse to support them, even as the lesser of two evils.

As always, the conservatives requiring extreme purity in their Presidential candidates, or proclaiming “a pox on both their houses”, end up undermining the conservative movement much more than the flawed but still generally conservative persons we get running for office.

Mr. Thompson,

I am afraid you throw the term ‘activist’ around like a frisbee (or a manhole cover). Judges on the right and the left can be activist judges… thy just do it in different ways. Is ignoring stare decisis activist? Is judicial restraint activist? Take the recent EPA case, which largely turned on statutory interpretation and standing. Interpretation of standing (who has standing to bring cases) tends to change with the composition of the court, turning on interpreting fairly limited phrasing in the Constitution. A court can choose to have a limited definition of standing, which protects the rights of Corporations, or an expansive determination, that protects the rights of NGOs. Both views can be attacked as ‘activist’, and as a misreading of the Constitution.

A more interesting case can be brought forward from the recent Federalism cases (Lopez et al). One originalist take is that we are back on the right path to the original Federalism as prescreibed in our Consitution, another is that it was wrongly decided because Congress should not be constrined by the Commerce Clause, but that the necessar and proper clause should, in fact, be controlling (the only thing prohibited from Congressional authority is the slave trade) and that the Court took a wrong turn in the 1880s and has been constrained by Stare Decisis ever since. And don’t get me started on competing views of the 14th Amendment (one of the few areas in which I agree with J. Thomas).

In short, your belief that only the left has ‘activist’ judges seems seriously misguided. As a last example, in terms of overturning Congressional legislation and lack of adherence to stare decisis, one would be hard-pressed to find a more ‘activist’ court than the Rehnquist court.

As far as I am concerned, so long as I believe the Justices are making both principled and sound judgments, even ones I disagree with, I tend to be sympathetic even while I may disagree with the normative outcomes of their decisions. Tarring your opponents with ideologically loaded terms (activist judge, legislating from the bench, and now, imposing sharia) makes me wonder if the person making the comments is really interested in the law and the process, or only desires that their predetermined outcomes always win.

Professor,

Essentially you are saying that Koh is a “worst cae scenario” SCOTUS nominee from a Dem President.  If you are still following this post, I would be curious as to who you would suggest as a realistic Dem SCOTUS nominee whom you would also find palatable.  It would provide a helpful reference point to guage just how unacceptable Koh is to you.

PROFB REPLIES: A fair question. How about: Colleen Kollar-Kotelly (DC); Susan Graber (9th Circuit); Diane Wood (7th Circuit); Kim Wardlaw (9th Circuit); Cass Sunstein (U Chicago); Jose Cabranes (2d Circuit); David Tatel (DC); Seth Waxman (former solicitor general). All are Democrats. All are left of center. All are smart with superb qualifications. But none strike me as being as far to the left or as reflexively idelogical as Koh.

jt,

“An “activist” on the Court is someone who perverts the rule of law, democracy, and the text of the Constitution in order to reach particular results that happen to jibe with his/her own personal policy preferences.”

uhh, have you ever read a rhenquist opinion? e.g. bush v. gore or anything involving the fourth amendment?

wheeler,

As I think it is clear, a judicial activist is a judge that makes decisions that we don’t agree with.

I’m also not sure where Prof. Bainbridge is going with the International Law canard. We currently have justices that employ international law in their decisions. To me, this is fine, so long as they don’t use them as biding precedent. If a country with a similar legal system hass encountered an issue similar to the one the S. Ct. is facing, why not cite to them in your opinion? It should have the same weight (or lack thereof) as, say, a law review article. The sleight of hand used here is that there is a conflation of using international law (citing to it in helping make a decision) with applying international law (claiming that it is biding authority and will override our Constitution).

[Wheeler]:  have you ever read a rhenquist opinion? e.g. bush v. gore

I have, and I find Bush v. Gore a very interesting case.  The “dissents” didn’t complain about any problems in the reasoning of the opinion (which was, roughly, that “all votes are equal” is not the same as “some votes, i.e., votes in these three counties, are more equal than others").  Every single dissent, instead, said “we shouldn’t have taken this case.”

If the top legal minds in the country weren’t able to complain about the legal reasoning, I’m not sure there’s much to complain about.

[Loki13]: If a country with a similar legal system hass encountered an issue similar to the one the S. Ct. is facing, why not cite to them in your opinion?

Why stop there?  We all know that this country was founded on Judeo-Christian values.  The Supreme Court should be able to cite to Mosaic Law if it wants to, so long as the cite isn’t binding.  I mean, if the ACLU is fine with bringing in laws that weren’t actually passed in this country, Mosaic Law certainly falls in that category.

However, (1) the Constitution lists the things that count as “law” in this country, and while that list includes ratified treaties, it does not include the laws of foreign countries, and (2) Congress and the courts get to write the Rules of Procedure, and the Rules of Procedure do not allow a case to be decided on what a law passed in another country says (unless there is some special connection, say the “other country” was Colonial England, and the law in question dates back to it; or if the case involves a US contract to import goods from another country).

That seems like a good reason to me to avoid citing Masaic law, Catholic Doctrine, or foreign law in published opinions.  Even if the “foreign law” isn’t the reason for the opinion.  Especially if the “foreign law” isn’t the reason for the opinion.

In my mind, a judge who ignores Article V (which after all invests the right to change the meaning of the Constitution’s plain text in the people, not in a black-robbed, unaccountable oligarchy) to expound a “living Constitution” is an activist, while a judge who attempts to cleave to the original, plain meaning of the text is not.  I prefer to live in a democracy with checks and balances.  You may prefer to live in an oligarchy.  I guess we’ll just have to agree to disagree, oh God of mischief!

Mr. Thompson,

I would agree with you, but the Constitution is but a guide, and oftentime is as clear as unmuddied water. Under the Constitution, who is allowed to bring a case before the Supreme Court (who has standing)? What is a case or controversy? What does the 14th Am. mean? Privileges or immunities? Do I have to be in a milita to bear arms? How about the 9th Am? If you accept that the S. Ct. should protect civil liberties from govt. encroachment (the Bill of Rights), and the 9th guarantees that there are some that are not mentioned by the Bill of Rights, what are those liberties? Marriage? Abortion? Freedom of Contract? The right to vote? Why is the government allowed to have an air force without Constitutional Amendment? What is public use for the purposes of eminent domain? Does this included a privately owned railraod? How about a private zoo? A private shopping mall? I could keep going on, but you get the idea…

As for original, plain meaning… do you want Bork’s original, plain meaning, or do you prefer Prof. Amar’s original, plain meaning? Do you want the intent of the people who wrote the Constitution, or the meaning of the provisions as they were properly understood by the people (however you might define the term) when the provision wa inserted? What about changing technology? How do we interpret 4th Am. prohibitions against searches in light of modern technology (cf. Kyllo, for Scalia’s take).

The Constitution is clear… clear as muddied water. I may be michievous, but I am not capricious… I have but one underlying hope, and that is that the Justices use the law in a reasoned and consistent manner to reach their results. I may have a belief that the jurisprudence of Stevens is superior (or inferior) to the jurisprudence or Roberts, but I believe that both of them are trying to interpret the law in a fashion that is consistent with their belief about what the law is, and not simply fashioning the law to fit their conclusions.

This is why I respect, for example, the joint opinion by Scalia and Stevens in Hamdi, where they both applied our Constitution as written (writ of habaeus) instead of joining the majority ‘due-process’ light opinion cribbed together from welfare cases.

PB REPLIES: Fine. Leave out the NRO stuff. You still have the concerns about Koh’s hostility to American exceptionalism identified by serious people like Rosen and McGinnis. You still have the Yale Daily News reports on the general climate at Yale. You still have his own stated views on the war on terror. Put together, it’s a package that is troubling.

concerns about Koh’s hostility to American exceptionalism What precisely were those alledged concerns and what alledged hostility? You certainly don’t make clear what they might be or how they’d be a threat to the U.S. legal foundation. What exactly is “American exceptionalism?” in a statutory or constitutional sense?

Are you talking about a perceived willingness to cite international law? Well, where’s the smoking gun? Is this just wild-fearmongering ("He has a strong personality! Therefore, he’ll probably use a case on the EPA to commit us to Kyoto!!! FOR SURE!")
Or is there some genuine evidence that he would deviate from or somehow exceed an already standard practice of citing international law in U.S. courts?

You still have the Yale Daily News reports on the general climate at Yale.

So… conservatives at Yale don’t like him because he’s a liberal? It’s insulting that you suggest that this should be a criteria for Supreme Court nomination. There’s nothing, nada, zero regarding actual actions the man has actually taken to curtail conservative speech. It’s a smear campaign with no substantive aspect.

You still have his own stated views on the war on terror.

I see. So Supreme Court justices are required to support one particular president’s foreign policy strategy? Even one that of which prime elements were struck down repeatedly by, for essentially liberal reasons, by an overwhelmingly conservative Supreme Court?

Finding GWB’s original GWOT strategy legally improper should be a basic test for legal competence. That’s why Hamdi vs. Rumsfeld was a 8-1.

Be honest and simply say: This guy’s a problem, because he’s a liberal, and conservatives should fight to keep liberals off the court. Remove any the pretense of some concern based on merit, or juriprudential appropriateness.

I don’t know how he might vote should Koh be appointed to the SCOTUS, but I’d be happy enough if he turned out to be something other than a slam-dunk rightwing vote that would give the Scalia-Roberts-Alito-Thomas faction that crucial fifth vote.
If we get another Justice who routinely votes with those 4, court-watching is going to become a dreadfully boring sport.

> The Constitution is but a guide,

No, the Constitution sets out how the government is to operate.  The government passes the laws.

> Under the Constitution, who is allowed to bring a case before the Supreme Court (who has standing)?

The Constitution says that Congress determines standing in all cases.

> What is a case or controversy?

Again, the Constitution gives that to Congress to clarify.

> What does the 14th Am. mean?

In what case?

> Privileges or immunities?

These are distinct ideas, with clear legal definitions.  Much like civil liberties are distinct from civil rights.

> Do I have to be in a milita to bear arms?

The Second Amendment doesn’t put such a restriction on the “right to bear arms.” But, if you’re really curious, look into the British definition of the right to bear arms, circa 1789.

> How about the 9th Am?

How about it?

> If you accept that the S. Ct. should protect civil liberties from govt. encroachment (the Bill of Rights), and the 9th guarantees that there are some that are not mentioned by the Bill of Rights, what are those liberties? Marriage? Abortion? Freedom of Contract? The right to vote?

They would likely be the rights British citizens had circa 1789.

> Why is the government allowed to have an air force without Constitutional Amendment?

Because http://volokh.com/archives/archive_2007_01_28-2007_02_03.shtml#1170032632

> What is public use for the purposes of eminent domain?

Whatever the current law says it is.  Which is not to be redefined by the Supreme Court.

> Does this included a privately owned railraod? How about a private zoo? A private shopping mall?

Depends on what the law passed by Congress says it is.

> I could keep going on, but you get the idea…

So could I.

The Constitution sets up a government, so of course it expects the government to create laws to answer many of your questions.  I really don’t see how it could be different.

Max,

I didn’t realize these were such simple questions! From now on, instead of reading law reviews, or cases, or even history (of which there are many differing opinions), I will simply come to you, for you are the fountain of all knowledge. Clearly, the Constitution is such a simple document that all issues implicated it that come before the Supreme Court should be decided 9-0.

Questions like whether “privilege or immunities” was meant to incorporate the Bill of Rights, or whether Due Process has any substantive component as common law suggests, and how to define it, or clearly beyond me. As for Congress defining standing, while I was aware that they had statutory authority in this area, I did not realize that they had recently amended Article III’s standings requirements! Did they get rid of the causation requirement when I wasn’t paying attention? Does this explain the DES lititgation?

I have so many question, Max, please give me your answers! Perhaps you have published them already?

Realizing i may be a little oversnarky, allow me to make my point a little more clearly- complicated problems have simple, easy-to-understand, wrong solutions. I do not claim to have all the answers, but I do know that many people who claim to have ‘originalist’ principles tend to cherry-pick when they want to be originalist.

Compare Scalia’s opinions in Raich and Lopez. From a Constitutional, and Federalist standpoint, what’s the distinction between a gun near a school and medical marijuana? Pot’s bad.

When originalists complain about BOR being incorporated via DP in the 14th, why is that? It’s because Slaughterhouse and Cruikshank shot down P&I;(I’m ignoring the or). But any reasonable understanding of the original meaning of P&I;in the 14th would have it incorporate the BOR because that’s what the Radical Republicans said it would do when they passed it, and prosecuted cases base on that belief after its passage. So now P&I;is dead-letter, a useless appendage.

There is this belief floating out there that the Constitution is this super-exacting guide for all governance. But it’s not. *Read it* It’s vague. It’s rooted in common law. It’s skeletal for a reason- it was meant for the people of the United States to understand it as a framework.

That is why I believe that the S. Ct. should have a place for both a Roberts and a Stevens. I may disagree with their decisionss, but I understand their basis for making them. And I think it’s a little presumptuous for me to say that I have the only answer as to what the Constitution ‘means’.

Using the Yale Daily News as any sort of authority is generally not a good idea and tends to undermine any argument you’d make.

> Questions like whether “privilege or immunities” was meant to incorporate the Bill of Rights,

Then, please, ask the question clearly.

> or whether Due Process has any substantive component as common law suggests, and how to define it, or clearly beyond me.

If you mean “substantive due process” as in “followed the law, except not really,” then I think you know my answer.  Due process is not defined in the Constitution, but has been defined by Congress and the states.  More importantly, it has been defined by society.

But let’s get into a vague issue.  If I want to have somebody declared legally insane and committed to a mental institution, there is a civil procedure to do so.  Since it’s civil, the standard and burden of proof is not as high as if it were a criminal case.  But in the end, the person will be forcibly restrained.  My questions:  (1) regardless of what the law says, do you think that should count as “due process” seeing as the victim may not be able to testify against me and may end up losing his freedom, (2) what limits should the court follow in “interpreting” the law in such a case?

> Compare Scalia’s opinions in Raich and Lopez. From a Constitutional, and Federalist standpoint, what’s the distinction between a gun near a school and medical marijuana? Pot’s bad.

Buying a gun is commercial activity.  Transporting a gun home is not commercial activity.  Congress’s ability to regulate interstate commerce does not reach privately transporting or owning a gun within a state.  States can and do regulate gun possession near schools.

OTOH, Raich rests largely on an expansive ruling by a previous Supreme Court that determined activity on a farm that looked a lot like commercial activity could be regulated as interstate commerce regardless of the facts in the case (personal use, whether the wheat was sold over state lines, etc.).  It’s assumed that the Court was bending over backwards in that case to not invalidate the New Deal.  In other words, it was clearly a results-oriented opinion.  The only way to get rid of Raich would be to get rid of that opinion; which would mean getting rid of stare decisis.  Are you ready to do that?

For the record, I am definitely redy to get rid of stare decisis.

Max,

Just a quick note. Re-read Lopez. In Lopez, they are specifically upholding previous commerce clause cases. “Even Wickard, which is perhaps the most far reaching example of Commerce Claue authority over intrastate activity, involved economic activity in a way that possession of a gun in a school zone does not.”

Um.... yeah. I think you are missing the *principled* distinction that Scalia was making. I will give credit to Rehnquist for following his Federalist principles, but read Lopez.... read the blistering dissent.

Then read Raich. Notice how the former dissenters are doing a little taunting… basing their case on Lopez(?!!?) and reaffirming the old commerce cases. Why? Because Scalia and Kennedy flipped. Why? Because pot’s bad, man. As my ConLaw prof asked when Lopez came out, “What if it had been a joint at the school instead of a gun?” Everyone thought the result would be the same (no commerce power to regulate).

Never underestimate results-oriented jurisprudence. Even from The Scalia.

Let me try again.

As to the Fourteenth Amendment and whether it incorporated the Bill of Rights, I believe it should have.  However, I currently attend a “Historically Black University,” and I am required to take a certain number of courses in black Studies in order to graduate (just as I would be required to take a certain number of Catholic courses if I were to attend a Catholic school).  Anyhow, we covered The Fourteenth Amendment very in-depth in one of those courses, and quite frankly, nobody agreed at the time what they meant by saying “equal.” Each person voted with a different definition in mind, so the resulting confusion was only natural.

Which, by the way, is why I don’t buy into “legislative history.”

As for Raich—I will agree that Scalia’s stated position is inconsistent.  However, (1) his stated position relies on stare decisis, so attacking the position for not being originalist also attacks stare decisis; and (2) there is a good originalist argument to be had.

“Originalism” does not mean “according to the practices set in stone as of 1789.” For instance, women did not own property in Colonial America, but they can today.  It seems natural that an originalist would afford a woman property owner whatever property rights a male property owner would have.

Likewise, “interstate commerce” in 1789 was very different than it is today.  I have done work for a gentleman in California without leaving my house.  In fact my wife once created and sold a logo to a gentleman in Canada without leaving the house.  Of course regulations on interstate commerce must be able to reflect this.

“Regulation” runs from unregulated to taxed to requiring a state-issued license, to requiring strict compliance with federal law.

Let’s change one fact in Raich before continuing.  Instead of implicating drug control policy, let’s implicate the FDA.  Medical treatment today is much different than 1789, and the FDA regulates it under the Interstate Commerce clause.  So, let’s talk about a hypothetical where Congress bans silicone breast implants from being produced, sold, or implanted in the US.  And let’s say that Hollywood convinces California to permit the sale, manufacture, and implantation of silicone breast implants within the state.

So the FDA raids a warehouse in LA and finds silicone breast implants.  How can it be sure that (1) these implants are made of 100% California goodness, (2) they will only be sold in California, and (3) they will only be surgically implanted in California?  Is California able to make the FDA’s police work that much harder, especially considering the definition of “federalism”?

It seems to me that if an item is properly banned throughout the country, whether it is uranium, bald eagle feathers, DDT, silicone breast implants, or controlled drugs, then an originalist would have to accept that the states cannot open loopholes to that ban, any more than they could impose a statewide “negative tax” on an item subject to a federal tax (say, gasoline) in order to reduce federal tax receipts.

That’s all that an originalist needs in order to support the Raich holding.  Raich herself was not involved in interstate commerce, or commerce of any kind, but her actions made policing a nationwide ban that much more difficult.  And her “get out of jail free” card was a state law that could not legally be passed, any more than a state law permitting unregulated trafficking in African elephant ivory could legally be passed.

Raich, the case, cites Wickard and stare decisis to both do less “collateral damage” and to come up with a shorter opinion.  Yes, Scalia should not have gone along with that, but that doesn’t mean a consistent argument cannot be made.

Max,

Just checked in. When looking to the ‘consistency’ in Raich, I think it is best to look at the Justices involved in Raich and Lopez.

Two switched sides.
One was Kennedy.
Kennedy is not known for judicial consistency.
The other was Scalia.
The majority in Raich expends a great deal of energy making the case as an extension of Lopez (almost gleefully so), but they reaffirming commerce clause power in the face of Federalism, as the dissent notes. Scalia, for all his artful wording, cannot escape that.

I am a liberal originalist- I think Congress should be able to regulate everything except slavery under n&p;. But you can use the rationale of Lopez for Raich to let pot escape the purview of Congress. And you can use the rationale of Raich to let guns be regulated by Congress. Flowery opinions and a ‘legislative scheme’ do not paper over the essential dichotomies between the two cases- where is Federalism more ascendant than in Police Powers (marijuana) and the ability of a state to be a laboratory for experimentation with a product that is entirely contained within the state?

...that is, if you believe in Federalism. Again, I agree with Raich (even though I don’t see the harm in medicinal marijuana). It’s just an example of how even The Scalia will practice results-oriented jurisprudence when he so deigns. Thomas, for all that I disagree with him, is almost 100% consistent. I would say consistently wrong, but he will at least rule on what he believes fits in with his legal worldview, real-world impact be damned.