"There Is No Common Thread"

7/28/2019 "There Is No Common Thread"

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There is No Common Thread

By. Ilyssa Fuchs

With some reservation concerning decisions that have become so embedded inour system of government that return is no longer possible I agree with Justice

Douglas: A judge looking at a Constitutional decision may have compulsions torevere past history and accept what was once written. But he remembers above all

else that it is the Constitution which he swore to support and defend, not the gloss,

which his predecessors have put on it.1

- Antonin Scalia, South Carolina v. Gethers, 490 U.S. 805(1989)

Introduction

The United States Supreme Court is an institution which is and always has been largely

shrouded in mystery. Today, briefs, transcripts, and oral argument audio are readily available,

but like the past, what goes on behind the closed doors of the justices offices and in conference

is rarely seen by the public, other government branches, or the media. This secrecy leaves law

students, lawyers, and scholars searching for supplementary methods of discerning why

Supreme Court justices vote in one way or another and/or why Supreme Court justices lean

towards certain positions, in order to be more effective advocates (the former group) or to

explain judicial trends (the latter group).

This paper will attempt to dispel the notion that modern Supreme Court justices decide

solely based on precedent and will argue that lawyers and law students in the 21st

century must

move away from a strictly legal analysis of the issues if they are to continue to act as effective

advocates. To do so, this paper will analyze the seemingly contradictory nature of Supreme

Court Justice Antonin Scalias position in his concurrence in Gonzalez v. Raich, as juxtaposed

against the Courts positions inLopez,Morrison,New York, and Printz, in order to make the

1JEFFERY A.SEGAL AND HAROLD J.SPAETH,THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 77

(2002).


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argument that relying solely on the legal model is detrimental to effective legal advocacy.

Moreover, this paper looks to prove that although justices may be driven by their own individual

ideologies, these ideologies are balanced through the reliance on precedent and the use of

strategy.

First, this paper will briefly discuss the three models of judicial decision making (legal,

attitudinal, strategic). Next, this paper will analyze select portions of writings in the area of

modern Commerce Clause jurisprudence, in an attempt to show that the legal model cannot be

the sole model that practitioners and scholars rely on when analyzing Supreme Court decisions.

Finally, this paper argue that by viewing legal issues through the interaction of all three models

rather than relying solely on legal precedent lawyers and law students will be better situated to

engage in practical legal advocacy both in the classroom and in the courtroom.

Models of Judicial Decision Making

Introduction

Scholars have spent decades analyzing Supreme Court decisions, attempting to explain

the justifications behind each justices individual decisions, and the decisions of the Court as a

whole. Based on these detailed studies of the Court, scholars have come up three general models

which help to explain judicial behavior. Today, these models have become increasingly more

important in explaining behavior because simple explanations based on case study approaches do

not explain factors occurring outside of the event, which may or may not affect the outcome of

the event or the way a justice behaves.2 Furthermore, the modeling approach also recognizes

the complexity of the world around us and, models purposefully ignore certain aspects of

reality and focus instead on a select and often related set of crucial factors3

2Id. at 44-45.

3Id. at 45.


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There are three key models which help to explain the reasoning behind justices decision

making; the legal modal, the attitudinal model, and the strategic (rational choice) model. All

three models facilitate both students and scholars in better understanding how and why justices

make the decisions that they do.

The first model, the legal model, which is largely the basis of all law school discussions,

states that the decisions of the Supreme Court are largely based on the facts of the case as well as

legal considerations such as the plain meaning of the law, the framers intentions when they

made the law, or precedent(s) set by prior cases.4

Thus, justices either: (1) follow precedent

when making subsequent decisions, (2) overrule unpopular precedent, or (3) distinguish cases

and precedents based on differences in facts. The second model, the attitudinal model, states that

justices are ideological actors which decide the cases on the basis or their own ideologies, policy

preferences, and attitudes.5 This model holds that the Supreme Court decides disputes in light

of the facts of the case vis--vis the ideological attitudes and values of the justices.6

The third

model, the rational choice or strategic model, states that justices are rational actors who take into

account many different factors, such as the preferences of other justices, and other political

actors, such as the other branches of government and make their decisions strategically in order

to maximize the outcomes.7

The Legal Model

The legal model is premised on the idea that precedent plays an integral role in judicial

decision making8 because, judges still subscribe to the legal model, at least for public

4Id. at 48

5Id. at 86.

6Id.

7Id. at 97.

8See id. at 48-49.


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consumption.9

Precedent simply means that judges will adhere to what has previously been

decided and that modern decisions are inextricably linked with past decisions.10 Traditionally,

when a new case clearly falls within the sphere of a prior decision, the previous case is

controlling and its holding binds the judges within its confines.11

Thus, the law thereby

develops a quality of connectedness, an appearance of stability.12 However, although the

notion that the judges job is to find correct answers to hard legal questions, and that precedents

guide the search, indicate[s] that stare decisis plays a vital role in judicial decision making,13

precedent does not necessarily restrict justices discretion in the cases that come before the Court

and does not fully explain why justices decide particular cases in favor of one party or another.

14

The Attitudinal Model

An alternate explanation of judicial decision making, one that lawyers and law students

should focus a considerable amount of their attention on, is the attitudinal model. The attitudinal

model stands for the proposition that judges decide cases based on their own political

ideologies.15

Simply put, conservative justices vote conservative because they adhere to a

conservative ideology and liberal justices vote liberal because they adhere to a liberal ideology.16

The model is based on the assumption that sets of cases that form around similar situations will

correlate with one another to form areas based on specific legal issues in which interrelated sets

of attitudes explain justices decisions.17

9Id. at 48.

10Id. at 76.

11See id. at 49.

12Id. at 76.

13Id. at 50.

14See id. at 76.

15See id. at 86.

16See id.

17Id. at 91.


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The Strategic Model

The final model of explaining judicial decision making, that lawyers and law students

should focus their attention on both on its own and vis--vis both the legal and attitudinal model,

is the strategic (rational choice) model. The strategic model is guided by the notion that judges

do not decide in a vacuum and that they must take into account the positions of other justices in

relation to their own.

This account rests on a few simple propositions: justices may be primarily seekers of

legal policy, but they are not unconstrained actors who make decisions based only on their own

ideological attitudes. Rather, justices are strategic actors who realize that their ability to achievetheir goals depends on a consideration of the preferences of other actors, the choices they expect

others to make, and the institutional context in which they act.

18

Thus, justices must alter their own attitudes and positions by choosing from available

alternatives in order to maximize the impact of their decisions and form coalitions amongst other

justices.19

When an actor considers the ramifications of his or her actions in a game-theoreticsituation and makes the best response to that situation given available information, that

actor may be said to have behaved strategically. This may involve acting in accordance

with ones sincere preferences, or it may involve acting in a sophisticated manner, that is,against ones sincere preference in order to obtain a better result.20

Furthermore, justices are forward thinking, that is they think about how their decisions

will affect the law, other branches of government, and the public.21 In this view justices use

bargaining tools to achieve good policy that is close to their actual policy preference but still take

into account the preferences of other justices and the way other institutions will react to those

decisions.22

18LEE EPSTEIN AND JACK KNIGHT,THE CHOICES JUSTICES MAKE 10(1997).

19See SEGAL AND SPAETH,supra note 1 at 97.

20See id. at 98.

21EPSTEIN AND KNIGHT, supra note 18 at 56-57.

22See id. at 57-58.


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Common Thread?

Raise your hand if you can tell me what the common thread is between and among this

line of cases? is a phrase often spoken by law professors and heard by law students. Because

lawyers and law students are generally taught to think in terms of the legal model (justices decide

based on precedent), this group (unlike political scientists) is chiefly concerned with using the

legal model to guide them in determining the potential outcome of cases. Thus, the legal model

is generally the starting point for the analysis of law and the prediction of possible future

outcomes when analyzing Supreme Court cases that turn on or are grounded in similar

Constitutional issues.

An analogous question commonly asked, is whether a common thread can be found in the

writings of a particular justice. A brief analysis of a small cross section of the decisions that

Justice Antonin Scalias has either joined or authored, on the issue of Congresss Commerce

Clause authority and its juxtaposition with the Tenth Amendment is particularly important in

dispelling the notion that judges decide solely on precedent.23

Furthermore, looking at Justice

Scalias writings and the opinions he has joined on this particular issue, as juxtaposed with both

precedent and his own ideologies about the role of judges and politics, helps to falsify reliance

solely on the legal model and in the alternative helps to garner support for both the attitudinal

and strategic models. This analysis, albeit concise, will prove that lawyers and law students must

take into account a justices own ideologies and their interactions with the preferences of other

justices in order to effectively predict future outcomes.

23For the purposes of this paper I will attempt to keep this analysis concise by looking only at five modern

Commerce Clause cases. Observably, this topic could be discussed in much greater detail and could quite possibly

fill the space of an entire book.


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Case Study - Congressional Commerce Powerand the 10th Amendment

The Congress shall have Power To Regulate Commerce with foreign Nations, and

among the several States, and with Indian Tribes.24

However, The powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.25 The debate over Congressional power to regulate commerce as

juxtaposed with the power reserved to the states via the Tenth Amendment has been a

contentious one and reliance on different cases as controlling has shifted several times

throughout history.26

Moreover, since the early 1990s, the Court has seemingly narrowed the

scope of Congressional power under the Commerce Clause and renewed the notion that the

Tenth Amendment provides an independent limit on federal actions that may be enforced.27

However, this is not without exception and thus provides a basis for the argument that Supreme

Court justices rely heavily on both their own ideologies and the juxtaposition between their own

ideologies and those of other Supreme Court justices when making judicial decisions.

In 1995, the Supreme Court ruled that a federal law restricting the possession of firearms

in school zones was unconstitutional.28 This was the first time in nearly 60 years that the

Supreme Court had struck down a law as exceeding the scope of Congresss authority under the

Commerce Clause.29 Similarly, in 2000, the Court concluded that Congress lacked the

constitutional authority under the Commerce Clause to enact a civil remedy for victims of gender

motivated violence.30

In addition, in 1992 and again in 1997, the Court used the Tenth

Amendment to limit the scope of Federal Congressional power and protect state governments

24U.S. Const. Art. 1, 8.

25U.S. Const. Amend. X.

26See generally, ERWIN CHEMERINSKY,CONSTITUTIONAL LAW,3

rdEd. (2009) 141.

27Id.

28See United States v. Lopez, 514 U.S. 549 (1995)

29CHEMERENSKY, supra note 26 at 183.

30See United State v. Morrison, 529 U.S. 598 (2000)


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from federal encroachments.31

All of these decisions, which limited Congressional power under

the Commerce Clause and expanded the protection of States rights, were 5-4 rulings in which

Justice Scalia joined the majority.32

Moreover, Justice Scalia authored the opinion in Printz v.

United States, which further helped to limit Congressional power in favor of states Tenth

Amendment rights and revive a strengthened notion of the limits federalism has on constraining

the federal governments authority to act.

On the other hand, in 2005, the Court upheld the Controlled Substances Act as a proper

exercise of Congressional authority and further held that Congress could regulate and prohibit

the cultivation of marijuana that occurred completely within the confines of California

notwithstanding the Tenth Amendment; Justice Scalia concurred and provided the fifth vote.33

As if not to state the obvious, Justice Scalias concurrence in Gonzalez was seemingly

contradictory to the precedents previously laid out byLopez,Morrison,New York, and Printz

because although the marijuana production and distribution occurred solely intrastate, the Court

and Justice Scalia still held that Congress had the power to regulate it under the Controlled

Substances Act; something else was at work. Could it be that Justice Scalias personal policy

preference on the issue of marijuana and the regulation of drugs had led him to a different result?

Did Justice Scalia act strategically in order to satisfy other members of the Court and other

political branches? Or is the regulation of marijuana truly factually distinguishable from that of

guns, violence against women, and/or the disposal of waste?

31CHEMERENSKY, supra note 26 at 183; See New York v. United States, 505 U.S. 144 (1992); Printz v. United

States, 521 U.S. 898 (1997).32

See CHEMERENSKY, supra note 26 at 183.33

See Gonzalez v. Raich, 545 U.S. 1 (2005).


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InNew York v. United States, the court was faced with the age old task of discerning the

constitutional division between federal and state power.34 Congress had passed the Low-Level

Radioactive Waste Policy Amendments Act of 1985, which provided three types of incentives to

encourage States to comply with their obligation under the Act to provide for the disposal of

waste generated within their borders.35 The focus of the case was the constitutionality of the take

title provision, which provided that States take title and possession of the waste or in the

alternative assume responsibility for damages incurred as a consequence of failure to take title.

The Court concluded that, While Congress has substantial power under the Constitution to

encourage the States to provide for the disposal of the radioactive waste generated within their

borders, the Constitution does not confer upon Congress the ability to simply compel the States

to do so.36

Although the Court specifically grounded theNew Yorkholding in the idea that the

federal government could incentivize the States to act, but could not command them to, as a

general proposition the Courts implicit position appeared to be that even if Congress had the

authority to regulate under the Commerce Clause, that authority could be constrained by the

Tenth Amendment. The Tenth Amendment confirms that the power of the federal government

is subject to limits that may, in a given instance reserve power to the States.37

Subsequently, in 1995, the Court decided United States v. Lopez. The issue inLopez was

whether Congress had the authority to pass the Gun-Free School Zones Act of 1990, which made

it a federal offense for individuals to possess firearms in school zones.38

The Court held that the

Act was unconstitutional because it, neither regulate[d] a commercial activity nor contain[ed] a

34See Printz v. United States, 505 U.S. 144 (1992).

35Id.

36Id. at 149.

37See New York, supra note 31 at 157.

38See Lopez, supra note 28.


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requirement that the possession be connected in any way to interstate commerce.39

The Court

reiterated the three broad categories of activity that Congress had the authority to regulate,40 and

further noted that under the third category, Congress would only have the authority to regulate

purely intrastate commerce if it substantially affected interstate commerce.41

In doing so, the

Court revived the notion Congresss power under the Commerce Clause would be, subject to

outer limits.42

Moreover, the Court stated that because 922(q) was a criminal statute that had

nothing to do with commerce43 it could not be sustained under the Courts precedents that

uphold the regulation of activities that, arise out of or are connected with a commercial

transaction, which viewed in the aggregate, substantially affects interstate commerce.

44

FollowingLopez, in 1997, the Court decided Printz v. United States. In Printz, the

question presented was whether certain provisions of the Brady Handgun Violence Prevention

Act violated the Constitution.45 Relying on the precedent set forth inNew York, Justice Scalia,

writing for the majority, held that the Act was an unconstitutional exercise of Congressional

power because although the Act served an important government purpose, Congress could not

compel the States to enact or enforce regulatory provisions.46 Subsequently, in 2000, in United

States v. Morrison, the Court reiterated its positions in the previous line of cases when it struck

down 42 U.S.C. 13981, which would have provided a federal civil remedy for the victims of

gender-motivated violence. In doing so, the court stated that Congress would not be able to

39Id. at 551.

40Id. at 558 (Three broad categories of activity that Congress can regulate under its commerce power: (1) The use of

channels of interstate commerce, (2) Instrumentalities of interstate commerce, or persons or things in interstate

commerce, (3) Activities having a substantial affect on interstate commerce).41Id. at 558-559.

42Id. at 556-557.

43I find this to be somewhat of a bad joke. The Court determines that the gun trade and criminal statutes that seek to

prevent it, specifically in school zones, have nothing to do with commerce, however common sense dictates that the

sale and trade of firearms, the subsequent prevention of that type of conduct occurring in or near school zones is

surely commercial.44

Lopez, supra note 28 at 560.45

See Printz, supra note 34 at 923.46

See id.


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regulate non-economic, conduct based solely on that conducts aggregate effect on interstate

commerce.47

The common thread betweenLopez, Morrison, Printz, and New York, appeared on its

face to be that generally Congress could only regulate commerce if it was either, interstate, or

substantially affected interstate commerce. Furthermore, Congress could not regulate non-

economic conduct based solely on that conducts aggregate effect on interstate commerce.48

Moreover, Congress would be further constrained by the Tenth Amendment on the grounds that

Congress could not invade the sphere reserved to the States and could not compel the states to

act.

49

Based on the this logic, arguably if the Supreme Court explicitly followed precedent,

Gonzalez would have come out the same or in similar fashion toLopez andMorrison (as pointed

out by the dissenters in Gonzalez), and the Controlled Substances Act would have been held to

be unconstitutional; especially since similar toLopez, the statute was a criminal one, which

arguable had nothing to do with commerce. However, the exact opposite proved to be true.

Notwithstanding theLopez andMorrison holdings, the Court found that the purely intrastate act

of growing marijuana could be regulated by Congress because of its aggregate effect on

interstate commerce and upheld the federal Controlled Substances Act.50

The decision was a 5-4

one, with Justice Scalias vote constituting the single most important vote, the fifth one, by way

of concurrence.

More importantly, notwithstanding his prior position in the aforementioned cases, and his

staunch stance on federalism and the protection of state rights via the Tenth Amendment,51

47See Morrison, supra note 30.

48Id.

49See generally, Printz, supra note 34,Morrison supra note 30.

50See Gonzalez, supra note 33.

51See generally, Bradford R. Clark, The Constitutional Structure and Jurisprudence of Justice Scalia, St. Louis

University Law Journal, Vol. 47, No. 3 (2003).


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Justice Scalia concurred in the Gonzalez judgment. Although, in his concurrence, Scalia did

point that that because the categories for regulating commerce were misleading and incomplete,

Congresss power had to be deemed from the Necessary and Proper clause,52

I posit that this was

plainly semantic posturing on Justice Scalias part. Justice Scalia wanted to uphold the

Controlled Substances Act because of his own personal ideologies,53 but he realized that doing

so would undermine theLopez holding. In the alternative, Justice Scalia decided to write

separately in attempt to distance himself from this contradiction by discussing Congresss power

under the Necessary and Proper clause. In my opinion, this proves that Justice Scalia and the

other justices are strategic actors who balance their own personal ideologies against those of

other actors, branches of government, and the public. Furthermore, this demonstrates that sole

reliance on the legal model for predicting the outcomes of future cases would be misplaced. In

order for law students and practitioners to fully assess Supreme Court decision making,

especially in the area of Commerce Clause jurisprudence, we must take into account each and

every justices personal ideologies. Additionally, we must do our best to assess how these

justices and their respective ideologies interact with each other; only then will be able to make

better predictions on the outcomes of future cases.

In my opinion it is no coincidence that Justice Scalia wrote separately but still his vote

still constituted the fifth and final one. Justice Scalia must have realized that the Court was side-

stepping theLopez precedent, hence the reason to ground his concurrence in the Necessary and

Proper clause, but at the same time needed to find a way to hold tight to his conservative ideals

52See id.

53See Conor Friedersdorf, Scalia: Federal Drug Laws Were A Mistake, THE ATLANTIC, Oct. 7, 2001 available at

http://www.theatlantic.com/national/archive/2011/10/supreme-court-justice-federal-drug-laws-were-a-

mistake/246321/ (Antonin Scalia is not a supporter of legalizing drugs. However, the article goes on to discuss

that even Justice Scalia feels that the federal drug war is failing and should be left to the states. This position makes

his concurrence in Gonzalez even more striking because notwithstanding his position he still upheld a federal law

which effectively encroached on State power. Therefore, there is even more support for the argument that Justice

Scalia acted strategically and thus the rational choice model can be said to have some weight).


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on the legalization of drugs by upholding the Controlled Substances Act. Furthermore, in acting

strategically, it appears as though Justice Scalia side-stepped his position on States rights and

State autonomy by effectively ruling that federal law enforcement would be able to continue

enforcing the Controlled Substances Act, notwithstanding that California voters overwhelmingly

supported medical marijuana legalization.

Moreover, the question still stands, how could it be that the aggregate effect of intrastate

handgun violence on interstate commerce would not allow Congress to enact the Brady Act,

while the similar aggregate effect of intrastate marijuana could be regulated by Congress? I

submit that the answer is also based plainly on Justice Scalias own personal ideologies on

controlled substances, namely marijuana, and his aforementioned position as a strategic rational

actor. Common sense tells us that firearms like marijuana are items that are quintessentially

economic in their nature notwithstanding the majoritys holding. Therefore, in my opinion

Justice Scalias concurrence (and the majoritys opinion) diminishes this point and twists

precedent in favor of his own ideological views when he states:

By this measure, I think the regulation must be sustained. Not only is it

impossible to distinguish controlled substances manufactured and distributed

interstate, but it hardly makes sense to speak in these terms. Drugs likemarijuana are fungible commodities. As the court explains, marijuana that is

grown at home and possessed for personal use is never more than an instant from

the interstate market and this is so whether or not the possession is for medicinal

use or lawful use under the laws of a particular State. Congress need not accept onfaith that state law will be effective in maintaining a strict division between a

lawful market for medical marijuana and the more general marijuana market.54

To further make my point, the same could be said about the guns at issue in Lopez. It is

axiomatic that firearms are also fungible commodities where it may be impossible to distinguish

between those manufactured and distributed interstate from those manufactured and distributed

intrastate. Thus, arguably, firearms, like marijuana are also, never more than an instant from

54See Gonzalez, supra note 33 at 40-41.


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the interstate market.55

If that is the case, under Justice Scalias logic, either Congress should

have the power to regulate the firearms at issue in Lopez, or should not have the power to

regulate the marijuana at issue in Gonzalez.

As far as I am concerned, these positions are completely contradictory and are based

solely on Justice Scalias own conservative ideologies and the interaction of Scalias ideologies

with those of the other members of the Court. Therefore, sole reliance on the legal model in

order to predict the outcome of the Gonzalez case would have been misplaced and would have

led to an inaccurate conclusion. In the vacuum of law school it is easy to get caught up in the

notion that Gonzalez should have come out the same asLopez, and harder to wrap ones head

around why two seemingly similar cases could have to very distinct results. Surely, each

sentence in each opinion could have a different meaning read into it by each of us, and two

reasonable people could disagree on how the Court and Justice Scalia came to two seemingly

different conclusions, but the point still stands, judges do not rely solely on precedent, and

neither should we. If we wanted to fully understand the Courts decision in this scenario, we

needed to look beyond the precedents ofLopez andMorrison and focuson the majority and

Justice Scalias conservative ideals and hostilities towards illegal drugs. Only once we consider

personal ideologies and values in conjunction with these precedents are we able to see the entire

picture.

Moreover, if we rely on Justice Scalias argument in Printz, that, It is an essential

attribute of the States retained sovereignty that they remain independent and autonomous within

their proper sphere of authority,56

we find even less support for the conclusion he later reaches

in Gonzalez. Although it is arguable that since the beginning of the War on Drugs in 1980s, the

55Id. at 41.

56Printz, supra note 34 at 928.


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Federal government has occupied the sphere of authority in regards to drug laws, States have

also enacted drug laws, and thus the federal government does not control this sphere of authority

entirely.57

Therefore, it could be said both the States and the Federal government do have the

proper authority to criminalize, decriminalize, or legalize drugs. Following logically, if the

States occupy this sphere, than pursuant to Justice Scalias own argument in Printz, the State of

California should have been able to retain their sovereignty in regards to this issue and have the

independent and autonomous authority to legalize marijuana for medical purposes without

interference by the federal government. This is another example where reliance on precedent

breaks down. If we are to rely solely on Justice Scalias argument in Printz in regards to the

Tenth Amendment creating this outer limit that the Federal government may not cross, then we

are inclined to predict that Gonzalez would have come out in favor of the State of California.

We know however, that that was not the case. I posit that the only way to explain this striking

differentiation from precedent is to again take into account Justice Scalias personal policy

preferences on the issue of drugs.

Furthermore, it must be presumed that in instances where the Court declares a

Congressional action to be unconstitutional, the decision will rest partially on the language of the

Constitution or on the language of constitutional precedents.58 However, in Printz, the reader is

instructed to fixate on the structure of the Constitution in order to divine a principle

governing the case.59

Thus, it is arguable that because Justice Scalia did not ground the Printz

decision in any Constitutional language or precedent he was subsequently able to follow a

similar course in his Gonzalez decision, despite the holdings in Printz andLopez. Under this

57See generally, Marc Mauer and Ryan S. King,A 25-Year Quagmire: The War on Drugs and Its Impact on

American Society (2007), available athttp://www.sentencingproject.org/doc/publications/dp_25yearquagmire.pdf.58

SEGAL AND SPAETH, supra note 1 at 11.59

Id.


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logic, it could be said that Justice Scalia was acting strategically and we can thus find support for

the rational choice model of judicial decision making.

On the other hand, I do not mean to imply that there are not distinct differences between

Gonzalez and the other cases. It is obvious that California was never explicitly commandeered

into enforcing any laws or any regulatory schemes of the federal government, like inNew York

and like in Printz. However, just because California was not explicitly being forced into

enforcing Federal legislation, does not mean California law has not been significantly impacted

by federal enforcement of federal drug laws.60

Furthermore, I do not believe that this difference

on its own is enough to distinguish the Gonzalez case from theNew York and Printz cases, nor

do I believe the facial differences between firearms and marijuana alone are enough to

distinguish Gonzalez fromLopez.

Conclusion

As Jeffery Segal and Harold Spaeth put it, Rehnquist vote[d] the way he does because

he is extremely conservative; Marshall voted the way he did because he was extremely liberal.61

In my opinion this is exactly what is at work here, Scalia votes the way he does because he too is

extremely conservative. The distinguishing characteristic in all these cases is simple: Justice

Scalia is pro-gun, pro-gun rights, and pro-2nd Amendment and he is not at all in favor of the

legalization of drugs even if said legalization is for medical purposes. These are Justice Scalias

own views. They are not grounded in precedent. There is no inextricable link between the past

decisions and the present ones. The legal model breaks down. For this reason, lawyers and law

students do themselves a complete disservice by focusing solely on precedent.

60See generally, Erick Eckholm,Medical Marijuana Industry is Unnerved By U.S. Crackdown,N.Y.TIMES,Nov.

23, 2011 at A22.61

SEGAL AND SPAETH, supra note 1 at 86.


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Furthermore, as mentioned supra, because justices seek legal policy we cannot solely rely

on the attitudinal model in making future predictions, rather we must consider Justice Scalias

personal ideologies in the context of his role as a rational and strategic actor. Arguably, because

Justice Scalia realized that his ability to achieve the goal of upholding the Controlled Substances

Act would mean side stepping his own personal views on federalism, he attempted to uphold the

law notwithstanding precedent, and ground his concurrence in the Necessary and Proper clause.

This is evidence that Justice Scalia considered the preferences of the other Justices on the court,

the choices he expected them to make, and the institutional context in which he was making his

decision. Therefore, we are able to find support for the conclusion that analyzing law using the

strategic model, taken together with both the legal model and the attitudinal model, is the best

way for lawyers and law students to make accurate predictions and more persuasive legal

arguments.

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"There Is No Common Thread"