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Judge Graham: "I Am Going to Pretend That the Supreme Court Did Something Different than It Did"

Not a judicial temperament, that is for sure:

Judge Graham: In Lopez the Supreme Court recognized that the direction of its existing Commerce Clause jurisprudence threatened the principle of a federal government of defined and limited powers, and it began the process of developing a new jurisprudence more compatible with the Constitution. That process was interrupted by Raich, where a majority of the Court was unwilling to expressly overrule a landmark Commerce Clause case in Wickard, which had been the law of the land for over sixty years. Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause...

Kennedy and Scalia were in the majority on Raich. Just saying.

If Judge Graham were more judicial, he would say that Rehnquist, Thomas, and O'Connor perhaps sought to shift the Supremes on a path to cut back congressional power--and perhaps not, for Rehnquist, Thomas, and O'Connor were in the majority on Eldred. And he would say that Rehnquist and O'Connor are no longer on the Court.

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