NO CHANCE. I'm frankly baffled by Ilya Somin's claim that there are plausibly five votes to strike down the PBA Act on Commerce Clause grounds. The most obvious problem with his argument is that it entirely ignores the Raich decision, under which the Commerce Clause issue presented by the Act is plainly insubstantial.

Obtaining an abortion is much more clearly a commercial transaction than growing medical marijuana for personal use, and given the dearth of abortion providers in the country abortion is certainly an interstate market. The idea that Scalia and Kennedy, both strongly personally anti-abortion, would switch votes given a more favorable set of facts is implausible in the extreme. It is true that the Court's personnel has changed, but the two Justices who left the Court were two of the three dissenters in Raich. At best, Roberts and Alito would be treading water, but both are demonstrably hostile to reproductive rights and lack Thomas's commitment to grand theory, so this strikes me as unlikely in any case.

The only other chance, then, would be if some of the Court's liberals would act as unprincipled hacks; I don't think there's any reason to assume that, as they've been entirely consistent on Commerce cases. (Certainly, Stevens's and Ginsburg's brief questions at oral argument -- which seemed to be much more about tweaking conservatives than about advancing a position -- aren't good evidence.) Similarly, the fact that Scalia joined Thomas's concurrence means nothing, since it didn't advance any position on the merits. Thomas, as far as I can tell, is the only likely vote to strike, and there's no chance at all that there would be five.

--Scott Lemieux

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