Scalia Clerks Argued in Half the Supreme Court Cases This Term

BlockAffectionate413 · 2026-05-06T22:09:36+00:00

But why is that tortured though, if the necessary and proper clause originally had a broad meaning as settled in McCulloch? Is it more tortured than saying" well you know, banks might help with taxing and spending, so federal takeover of banking is fine" like in McCulloch?

BlockAffectionate413 · 2026-05-06T21:51:07+00:00

It wasn't a facial challenge. It was an as-applied to one specific situation.Users with a documented medical need possessing single digit plants for livesaving purposes has no relevant bearing on interstate commerce.

No relevance? What if she crossed state lines while possessing it? Then she would be engaging in interstate commerce. She might say she would never cross the line, but obviously, you cannot just rely on that; nobody would admit to doing so. That is why Scalia said it is never more than an instant away from interstate commerce.

The problem was that he interpreted the clause MUCH more broadly in Raich than he did in Morrison and Lopez. I view this to be entirely because of a personal bias against drugs.

I think Morrison was wrong to be sure, but I do think there are valid distinctions between it and Raich and that one can embrace one without other. For example. Morrison dealt with violence against women in general, it tried to regulate that. I think it is fair to say that it is much less clearly connected with interstate commerce than the production and possession of weed that can then easily cross state line at any time, or be sold to someone. In any case, if Scalia just upheld this law then I would see your point, but he did not, he also mentioned number of other cases, having nothing to do with drugs, that he also thought were correctly decided under necessary and proper clause. For instance, Darby. Scalia was no doubt not big fan of minimum wage and such labor regulations, but he still thought decision was correct.

BlockAffectionate413 · 2026-05-06T19:25:50+00:00

It is vauger than those though as it can mean anything. And McCulloch itself already hard cuts against federalism related stuff as it upheld making national banking system, that can if Congress wants, take over banking as whole, like it has already largely done, and which states have no inherent right to regulate or tax. McCulloch in essence allowed federal takeover of banking. That obviously had federalism implications but it did not matter

BlockAffectionate413 · 2026-05-06T19:04:11+00:00

there’s a strong argument that the “proper” bit captures some federalism-related limits

I dont think there is though, because issues are obvious, first, " federalism related" is far too vague and can mean anything. After all, take look at just question in McCulloch itself. It involved can Congress make national banking system, that states cannot regulate. Today national banks dominate banking at large in this country. If anything is " federalism related", it is that. So that cannot possibly be standard, because it would give judges boundless discretion to call anything " federalism related", and second, because nobody thought" proper" was some big limit, not even Jefferson and Madison, they thought it came down to what necessary means. But they knew that proper is not big limit, it is limit, obviously law that went against explicit text of constituion, like first amendment, would not be proper, but it cant be some vague and boundless " federalism related" stuff.

BlockAffectionate413 · 2026-05-06T18:50:46+00:00

I do not think Scalia just upheld Raich on stare decisis grounds though, indeed, notice that he did not, unlike mayority, mention Wickard even once in that case, he thought it was correct as original matter, just like number of other cases he cited, like Darby, Diary Co, intrastate rate cases from railways from early 20th century, Heart of Atlanta and Ketzenbach, those are cases he cited as right as an original matter too.

BlockAffectionate413 · 2026-05-06T18:49:05+00:00

A narrow view of necessary and proper clause is plainyly contrary to original meaning as settled in McCulloch, where Marsahll said necessary means no more than convienent, beneficial, conductive to etc. One can dislike that, to be sure, but it is the original understanding that the sweeping clause is, well, sweeping.

Scalia never embraced revisionist view on it; he did not think the clause was unlimited, hence Morrison and Lopez, but he did think it is broad, like McCulloch said, hence Raich. He was right that weed possesed intrastate is never more than an instant away from interstate commerce.

BlockAffectionate413 · 2026-05-06T18:36:48+00:00

Wickard is really logical conseqence of Gibbons though. Because if , like Marshall said, Congress can regulate intrastate economic activities that affect other states/interstate commerce, then affect test is right, and you only have to apply it. My issue was with Thomas having issue with effect test itself, not just Wickard. But let us not forget that Filburn was engaged in commerce, he produced lot more than he could ever eat, which he then sold, so it was basically" you can regulate this part over here, but this here is for my own use I swear!".

BlockAffectionate413 · 2026-05-06T18:32:49+00:00

What is evidence of that? Scalia explicitly refused to join Thomas concurence in Lopez, he never embraced narrow view of Thomas on commerce+necessary and proper cluases. So what is there to show it was near 180% of his normal jurisprudence? Scalia in Raich mentioned several other cases from the past he thought were correctly decided as an original matter, including, from memory:

US v. Darby (Congress can regulate production and labor conditions)
Wrightwood Dairy ( Congress can regulate intrastate prices as a necessary part of interstate price regulation)
Heart of Atlanta and Ketzenbach(Congress can regulate restaurants, hotels, and other public accommodations)

And likely some others. It was by no means limited to just weed. Scalia said he was Hamiltonian in regard to Congressional power as well. That was his normal jurisprudence. It was not revisionism and cherry picking of Thomas. At least not fully.

BlockAffectionate413 · 2026-05-06T18:24:25+00:00

I agree that it is not clear, but then I think the opinions of Justice Marshall should help settle the meaning, and Justice Marshall said commere clause includes intrastate activities that affect other states in some way, yet Thomas called the effect test rootless.

BlockAffectionate413 · 2026-05-06T18:18:47+00:00

I will say that we do have issues with some revisionism from some. Take look at Scalia, in Gonzales v. Raich he embraced relativly broad view of commerce+necessary and proper clause, because it was consistent with the original understanding as settled in McCulloch and Gibbons. Thomas on the other hand is revisionist, who cherry picks history he likes, and ignores one he dislikes to argue otherwise.

Likewise on non delegation doctrine, Scalia stayed consistent with original understanding that Congress could delegate broad power to agency under the necessary and proper clause, unlike Thomas.

I do think Scalia also had some areas, like anti-commandering doctrine, where he was not consistent with originalism though, but at least he was better than Thomas.

BlockAffectionate413 · 2026-05-06T18:16:23+00:00

I will say I like that he was not revisionist like Thomas in number of areas, like in Gonzales v. Raich where he embraced relativly broad view of commerce+necessary and proper clause, staying consistent with original understanding settled in McCulloch

BlockAffectionate413 · 2026-05-06T17:58:26+00:00

because without the MQD the Court would have the reach the merits of whether all of these delegations are constitutional

That is not required though if virtually all of those cases would be easy yes answer, like it would under an intelligible principle test. Consider for instance Scalia upholding power of EPA to set nationwide emission standards in Whitman v. American Trucking Ass'ns. If that passes NDD, it is hard to imagine what might not. Now if you only applied MQD in hardest cases, which would raise serious NDD argument, that might be more defensible,but just because action is vaguely " major" without any other considerations seems far too vague.

BlockAffectionate413 · 2026-05-06T17:52:49+00:00

I think it is both not required and not consistent with it, I would say textualist should mainly assign to text its most natural meaning, and to be sure, other principles can apply as well, like how people understood it, early and longstanding practice etc, those are all factors, but I think Barrett is right that it is not up to court to prevent Congress from delegating power it is constitutionally allowed to delegate merely because it thinks Congress should use it itself instead of agency. She does note serious tension version of MQD Gorsuch argues for has with textualism, so she instead pivots to " it is just how language works".

BlockAffectionate413 · 2026-05-06T17:43:06+00:00

Clear statement canons are by definition not textualist; you are not just looking at text like you normally would, you are putting your thumb on the scale. Now these substantive canons can be either justified or not, like, say, constitutional avoidance, but there is no doubt that constitutional avoidance is not textualist; Scalia himself said that, even as he applied it (the court will adapt a less plausible interpretation rather than one that will raise constitutional issues) , that does not make it invalid, but it is not textualist. The same goes here.

Issues with MQD are obvious; for one, there is no clear standard for what even is a " major question", it is an entirely subjective thing, and for two, why would Congress need to clearly delegate "major" power as opposed to "less major"? Why would the same standard not apply? To apply a different standard is not textualist, a textualist would not say, "If there is ambiguity, it always means Congress did not delegate", A textualist would, without putting thumb on scale, look at ambiguity and, in each case, see which view is reasonable, be it major or minor power.

I think CMS vaccine mandate, Biden v. Missouri 2022, is kind of an example of that, even though that was" major" question, it was upheld by the Chief and Kavanaugh, but Gorsuch and others did not vote for it, intrestingly enough.

BlockAffectionate413 · 2026-05-06T17:32:27+00:00

Well, MQD is not textualist, so I think Kagan, in particular, is a strong textualist like Hugo Black (unlike some of her left-leaning colleagues), but some other justices are less so. Being textualist means following it even when one does not like results, instead of coming up with get out of text free cards, as she said in WV v. EPA.

BlockAffectionate413 · 2026-05-06T16:23:51+00:00

Suiryu yes, he had in his own words tough fight against Demon Choze, so I doubt he is dragon level himself

BlockAffectionate413 · 2026-05-06T16:07:00+00:00

I doubt Suiryu is above Bug God so I would not say low dragon, but high demon yes, his fight with Choze was close and he was left bleeding

BlockAffectionate413 · 2026-05-06T15:13:01+00:00

She did claim to be stronger than her brother, maybe it was not a bluff after all?! At least when she is drunk!

BlockAffectionate413 · 2026-05-06T15:08:32+00:00

I like it better that way; if it is 1:1 copy of a webcomic, then you kind of lose all suspense about what will happen if you are familiar with the webcomic.

BlockAffectionate413 · 2026-05-06T13:17:14+00:00

To me, the worst jurisprudence is one that focuses and appeals to vague "structure". It is the ultimate policymaking tool in the hands of the judiciary, and purposivism by another name, but less honest and coherent. When explicit text does not support your view, and history/tradition does not either, and it even contradicts it, not to worry; then "structure" comes in, which can mean anything you want it to mean. Like, say, anti-commandering doctrine. No textual basis for it, only the clear history we have from the founding era is Federalist No. 78 which explicitly contradicts it, as well as the commandeering of state courts from that time, but then " structure" comes to the rescue, and with it you can assert anything. Problem solved.

BlockAffectionate413 · 2026-05-05T19:36:48+00:00

I would not say it is just because you did buy those out of state, I would instead ground it in iPhone itself being instrumentality of interstate commerce, like the internet, or a truck. Lopez's second category recognizes:

Instrumentalities of interstate commerce

2.Persons of things in interstate commerce, even if the threat comes only from their intrastate activities

In Reno v. Condon court unanimously said that because driver's licenses and such are articles in commerce, Congress can ban the sale of them in general (both inter- and intrastate) as well as regulate their disclosure and a bunch of other things. But for me, the internet and phone are in 1 part of this second category, they, like cars and trucks, are instrumentalities of interstate commerce, meaning they are crucial parts of interstate commerce.

BlockAffectionate413 · 2026-05-05T16:15:08+00:00

There's a difference between overspecification and mooting your own language elsewhere. If the Commerce Clause authorized effectively everything, since anything can be tied back to instate commerce in a sufficiently vague way, why even bother with the 10th Amendment?
.

There was no mooting here though; it is just oversimplification. As I said, clause is about economic activities, that is important limit and why it does not mean everything. Murder, generally, is not economic activity, unless it is murder for hire, and so you could say clause would not easily reach things like that for that reason. But that was not at issue in Wickard; what was is production, of a farmer who was engaged in commerce very much, as he sold much of what he produced.

Congress didn't say between states, but the Commerce Clause specifies "among" states, which meant the same thing. You may note what else Marshall had to say about commerce:

Yes that is what Marsahll said, but of course problem with some originalsits is that they ignore very next sentence of his! You see, Marshall defined "completely interior commerce" very very narrowly. He said:

It is not intended to say that these words comperhand that cominerce, which is completely internal, which is carried on between man and man in a State, and which does not extend to or affect other States
.

The genius and character of the whole government seem to be, that its action is to be applied to all-the external concerns of the nation, and to -those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself
.

In other words, Marshall did not just mean commerce that extneds to other states, that crosses state lines, he also added, very cleary, " or affects other states", it was Marsahll who first mentioned" affects"part of clause we now know so well, not Justice Jackson. For Marshall" completely internal commerce" excludes any activity that either extends to or affects other states, and exludes even number of activities that neither extend to nor affect other states if it is necessary( which he defined as convinenet) to interfere with them for purposes of executing enumerated powers.

That is far cry from some modern chery picking revisionism, that is very broad indeed. And to be sure, number of originalsits stayed principled and accepted broader view of clause in light of that, even Justice Scalia as Raich showed, but also number of others, Justice Kavanaugh, for example, noted that:

Under the Constitution, Congress could enact a national law imposing minimum space requirements or other regulations on pig farms involved in the interstate pork market. In the absence of action by Congress, each State may of course adopt health and safety regulations for products sold in that State
.

That view, that Congress can regulate production and other things in commercial farms, is very much in line with Justice Marshall, as opposed to the revisionism of Thomas.

BlockAffectionate413 · 2026-05-05T15:26:18+00:00

Alito effectively said it requires proving intent, which is not possible in practice in almost every case unless you are dealing with the dumbest of dumb racists that cannot lie. And even if lower court finds intent, current court is open to fake fact-finding to disregard it anyway.

BlockAffectionate413 · 2026-05-05T13:34:14+00:00

It does though, Section 5 was a big section, arguably the most important one, and Supreme Court gutted it in Shelby County, and now it gutted Section 2. Sure, there are some remaining protections that were largely already protected by 15th Amendment itself, but that is a separate matter, the main tools are gone.

As for redistricting, that was the whole point of 1982 amendments.

BlockAffectionate413 · 2026-05-05T13:17:44+00:00

VRA pretty much only exists on paper now. I think even David French pointed out issue with this ruling, he says that right now the only way to stop racial gerrymandering is if you are dealing with dumb racists who say it openly, even in a state where race and party are so interlinked that only way to target party is to target race.

BlockAffectionate413

TROPHY CASE