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Monday, January 23, 2006

Gonzales v. Oregon: A Time to Kill . . . . Not a Time to Heal (Ideologic Inconsistency in Decision and Direction)

Credit goes to this guy for the title to Part III.C of my Comment.

Much is being made about the decision and the split of the justices and who landed where. However, for my part, I believe the only salient point that can be taken from this decision is the restatement of a sad truth:

We are losing the best Justice this Court has to offer.

Of these 9, it would appear only O'Connor acted out of sincerity--without the imposition of subjective beliefs--and with the wisdom of a judge who bases decisions on the law.

I say this after an examination of O'Connor's position on the federal-state balance issue from Lopez to Raich through to Oregon today.

The more liberal members of the Court, who in Lopez argued there wasn't even evidence of a traditional realm of State "police powers" protected by the Tenth Amendment, threw their support to Justice Kennedy's writing of this opinion. And, while the decision seems to protect the Federal-State balance, it was not decided on the basis of answering the question, "Can the Federal Government do this?" but by viewing the much more limited question, "Did the Congress give the A-G power to do this?" Dicta in the majority opinion seems to sway back and forth at times as to whether Congress (or the FDA) could actually do what the AG here can't.

And the conservative members of the Court? They take the position that the AG can do what they've previously argued Congress can't do before. Well, except for Justice Scalia, perhaps . . . But this is only because of his decision in Raich which still doesn't seem to be in keeping with his previous stance on the topic of Federalism.

All in all, the ruling does not tremendously complicate my Comment. After all, the thrust of my argument was that the Supreme Court has no clue as to what is going on and doesn't seem to be willing to get a firm grasp on the topic of Federalism, either. It does, however, make it more difficult to present the material with any amount of organization.

After all, when the area of law is nothing more than a game of 52-Pick-Up to the Justices . . . what will it mean to potential readers?


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