Criminal justice, constitutional law, federalism and hot button issues

The Supreme Court’s Johnson decision today (basics here) about racial segregation in prisons — as well as its cert. grant yesterday in Gonzales v. Oregon concerning federal challenges to Oregon’s “Death With Dignity” law (law.com background here, blogsphere commentary here and here) — has me again noticing the frequent intersection this SCOTUS term of criminal justice, constitutional law, federalism and hot button issues.  Of course, these intersections are obvious in the (already argued) medical marijuana case of Ashcroft v. Raich (lots of details here and here), and the (soon to be argued) prison RLUIPA case of Cutter v. Wilkinson (background here), the (soon to be decided?) juvenile death penalty case of Roper v. Simmons, and even some little known case called Blakely (see here and here for more on Blakely and federalism).

A decade ago, after Lopez, and even five years ago after Morrison, many commentators thought we might see the so-called “federalism revolution” come to criminal law.  But, as Craig M. Bradley noted last year in Federalism and the Federal Criminal Law, 55 Hastings L.J. 573 (2004), “very few cases have been reversed based on Lopez or Morrison.”  Though the post-argument buzz was that Raich is unlikely to change this basic storyline, I am intrigued by the broader cross-cutting of jurisprudential principles in all of these cases. 

(Fortunately, I have the benefit of lots of Ohio State colleagues to discuss these issues.  As I noted here, Cutter is something of a law school civil war because OSU-affiliated lawyers are on both sides.  And my colleague Marc Spindelman has been examining the Oregon assisted suicide case for some time, and his article “A Dissent from the Many Dissents from Attorney General Ashcroft’s Interpretation of the Controlled Substances Act,” 19 Issues in Law & Medicine 3 (2003) (available here), thoughtfully explores some of the federalism ideas in that case.)