...mostly. Skimmed the dissents. I'm not usually an O'Connor fan but this seemed right on: The Court’s definition of economic activity is breathtak-ing. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufac-ture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market. Putting to one side the problem endemic to the Court’s opinion—the shift in focus from the activity at issue in this case to the entirety of what the CSA regu-lates, see Lopez, supra, at 565 (“depending on the level of generality, any activity can be looked upon as commer-cial”)—the Court’s definition of economic activity for pur-poses of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regula-tory reach.
She's good when it comes to Federalism. Where is she on other stuff? You have to wait for the opinions.
Speaking of unpredictable...Scalia, usually not, concurs. I have two views here. One is that he is restrained. He reached back to Marshall, 1819, to show how broad the Commerce Clause can be. Certainly Marshall was not so broad as the majority and Scalia is not either. His argument is certainly nuanced as he says, and he makes a decent one that Congress may regulate Commerce even in order to stifle it (here I'm not so sure). Thus, the ends of the legislation are legitimate and the means are reasonable in light of the ends. To clear that up it is fine for Congress to prohibit interstate drug traffic, not in question in this case at all btw, and it is okay to prohibit personal growth and use because this would make Congress's regulation of the interstate market too difficult. Drugs more easily enter that market.
My second view is more interesting and has two parts. One, Scalia when writing in concurrence does so to point out why the majority is wrong on some part. He hopes to narrow the majority opinion so it is not so broadly construed in the future. So the Commerce Clause does not cover every productive activity as O'Connor warns, but it does stretch to legitimate Commerce regulation ends, e.g. prohibiting interstate drug traffic.
Let's just imagine Scalia dissented. To what effect? None. The majority still wins 5-4. Thomas and O'Connor can write that dissent for him.
The second part is even more political. Does Scalia want to be chief justice? I don't think he would mind. And he is the only candidate on the court right now in my opinion. So it's either him or the new guy. The President likes Thomas, but it would be another huge fight. Scalia is much more respected by honest liberals even though wholeheartedly disagreed with. Scalia, not usually prone to compromise, does from time to time do things like write this concurrence or even write the opinion in a sketchy case so that it is narrow. This is a good thing for a chief since he assigns opinion writing. Anyway, this concurrence could be seen as part of a campaign for chief perhaps. Just speculating...
Overall, I think O'Connor has it right. I tend to be radical in Commerce Clause thinking. Not just what is Commerce, but what is "regulate". Some say to make regular, not anything prohibitive. I lean toward this view, but Scalia is right to say it is dead. Over 100 years of precedent is not going to be turned over and not worth the fight. The federalism fight, however, is very much worth it. Federalism is what separates our welfare state from Europe's. Federalism is a large piece of ensuring economic freedom and dynamism that centralized states lack. So this is my broad view.
I would swallow this one if Scalia could be chief, though, I think. He has been the most intellectually influential justice on this court. He is the only intellect on the court really in the sense of having an impact on "the law". Rehnquist has been an important chief, but the rest of the court are small men compared to Scalia. It would be a good capstone for him.
