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05/07/2023

Ilya Somin on Justice Scalia's Unpublished Dissent in Kelo
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Justice Scalia's Unpublished Dissent in Kelo v. City of New London.  From the introduction:

... [O]ne of the most interesting revelations in Stevens' files is that Justice Antonin Scalia wrote a dissent in the case, which he eventually chose not to publish. In this post, I reprint Scalia's dissent in its entirely (it's short!), and then offer some comments.

And from later on:

Ironically, just 17 days before Kelo was issued, and nine days before Scalia circulated his dissent, the Supreme Court issued its decision in Gonzales v. Raich, which held that Congress' power to regulate interstate commerce was so broad that it allowed it to ban the possession of medical marijuana that had never crossed state lines or been sold in any market, even within a state. Justice Stevens was the author of the majority opinion in Raich, just like in KeloRaich was a deeply flawed ruling that expanded federal power further than any previous Supreme Court decisions, and ran roughshod over state diversity and autonomy. There is an obvious tension between Stevens' paeans to state and local autonomy in Kelo and his endorsement of extraordinarily broad federal power in Raich.

Scalia could and should have called out Stevens and the four other justices who were in the majority in both Raich and Kelo on this contradiction. But he was ill-positioned to do so, because he himself had also voted for the federal government in Raich, albeit in a concurring opinion that used different reasoning than the majority. In my view, this was one of Scalia's worst opinions.

In sum, Scalia was right to highlight the flaws in Stevens' appeal to federalism and local diversity. But his own role in the Raich case prevented him from pointing out the full extent of the contradiction in the majority's position.

Agreed.  Justice O'Connor's dissent in Raich is entirely persuasive to me from an originalist perspective, and also shows why the Court would not have needed to overrule any cases to reach it (I think that was Scalia's main concern).  I also think Scalia later came to regret his Raich concurrence, or at least its implications, as indicated by his participation in the joint dissent in NFIB v. Sebelius.