I concur with Orin’s post below that the ideological mix of judges on lower courts does not explain their response to the Blakely decision. Exhibit A to WIll Baude’s argument is Paul Cassell. As an academic, Cassell was an advocate of the sentencing guidelines, yet he was one of the first federal judges to find the federal sentencing guidelines unconstitutional under Blakely.
I will, however, come to Baude’s defense that the ideological composition of the lower courts most likely does explain the tepid reaction to Lopez and Morrison. Liberals, and even many conservatives, on lower courts are generally hostile to court-imposed limits on the commerce clause, so they’ve construed Lopez and Morrison narrowly. Liberals tend not to like the doctrine because it reduces federal power, while some (though by no means all) conservatives are simply less eager to invalidate federal statutes. Thus there is a distinct minority of judges on the lower courts willing to apply Lopez and Morrison in an aggressive fashion.
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