Today in Supreme Court History: May 4, 1942

5/4/1942: Wickard v. Filburn argued.

Comments

[Brett Bellmore]

Another Supreme court day that will live in infamy.

[Mr. Bumble]

Beat me to it.
Wonder how much of an effect WWII had on any other SC cases.

[John F. Carr]

I would gladly trade a wrong decision on abortion for aborting Wickard v. Filburn. We were close with Gonzales v. Raich.

[bernard11]

I’m going to chime in here and say I think Wickard vs. Filburn was rightly decided.

What happened was that the government set up a cartel. Maybe not a great idea, but that’s what they did, and it was constitutional.

Now, the way you set up a cartel – a “group monopoly” – is to assign quotas to the participants, so production is limited, and prices are high. The big problem with cartels is that members, especially small ones, cheat. They exceed their quotas, thereby gaining the price advantage without obeying the production limits.

To make the cartel work, you need to enforce the limits, and this usually requires government action. Most private cartels fall apart because of the cheating.

And yes, Filburn gained a price advantage by not having to buy wheat at the artificial price. And yes, it is quite likely the cartel would have failed if everyone could do that, or something similar. So it was quite legitimate to act against Filburn as part of regulating interstate commerce in wheat.

[Dilan Esper]

Filburn gained an advantage by subsistence farming. But he paid a cost- which is that he was subsistence farming.

[bernard11]

I don't think Filburn was a subsistence farmer. That term generally describes someone who does not sell his farm production but rather uses it entirely to feed himself and his family.

By contrast,

The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

Aside from that, I don't get your point. Is the cost that he paid the inability to sell his excess production? If so, that's nonsense. It is the very essence of a cartel that members have quotas. And without the cartel, which assigned him a quota, the price of wheat would have been much lower.

Filburn was trying, so to speak, to reap the rewards of being in the cartel while not complying with its rules.

[Dilan Esper]

The issue involved his wheat production. He was growing wheat to feed himself and his animals. That was the subsistence farming. Had he sold wheat on the open market, that would have made his wheat production subject to the commerce power. But he didn't.

So the way he "escaped" regulation is by not selling any of the crop. That's a self-limiting principle.

[bernard11]

Dilan,

It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding.

Also, suppose he had sold it purely intrastate, to neighboring farmers who didn't grow wheat, to use as feed.

[Dan Schiavetta]

Flores-Figueroa v. United States, 556 U.S. 646 (decided May 4, 2009): immigrant gave employer fake green card but the number on it turned out to belong to a real person; not guilty of identity theft because statute (18 U.S.C. §1028A(a)(1)) requires theft to be "knowing"

Arthur Andersen LLC v. Carlisle, 556 U.S. 624 (decided May 4, 2009): nonparties to arbitration can seek stay of lawsuit pending arbitration and denial of stay is immediately appealable under 9 U.S.C. §16(a)(1)(A)

Walz v. Tax Commission of City of New York, 397 U.S. 664 (decided May 4, 1970): property tax exemptions to religious organizations do not violate Establishment Clause

Keeney v. Tomayo-Reyes, 504 U.S. 1 (decided May 4, 1992): must develop the facts in state court before running to federal court via habeas (here, attempting to void nolo contendre plea to murder because interpreter allegedly mistranslated at plea hearing); failure excused only on good cause and resulting in prejudice to defense on merits (superseded in 1996 by 28 U.S.C. §2254(e)(2); only excuses now are change in law or new evidence, see Shinn v. Ramirez, 2022)

Arizona v. Mauro, 481 U.S. 520 (decided May 4, 1987): Suspect, arrested, asserts right not to speak. Along comes his wife and sweet-talks him into conversation, taped, with police present. Statements admissible? Yes! 5 - 4 decision.

Complete Auto Transit, Inc. v. Reis, 451 U.S. 401 (decided May 4, 1981): 29 U.S.C. §185, which prevents employers from suing union officials who violate no-strike provision of collective bargaining agreement, also protects wildcatters (this was a strike by truckers unauthorized by the Teamsters Union)

Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (decided May 4, 1987): California statute forcing Rotary Clubs to admit women doesn't violate Free Association (First Amendment)

Bullard v. Blue Hills Bank, 575 U.S. 496 (decided May 4, 2015): bankruptcy court's refusal to confirm repayment plan didn't dispose of "discrete dispute" under bankruptcy law and is therefore not appealable

Plumbers, Steamfitters, Refrigeration, Petroleum Fitters, and Apprentices of Local 298 v. Door County, 359 U.S. 354 (decided May 4, 1959): county is "person" under National Labor Relations Act and entitled to have NLRB determine union disputes over contracting work

Terry v. Adams, 345 U.S. 461 (decided May 4, 1953): Fifteenth Amendment violated by arrangement by which all-white political club fed invariably successful candidates to Texas Democratic primaries

[Ghost of Patrick Henry]

Wickard and Griggs. The two cases that destroyed America. The debt bomb is coming people.

[Sarcastr0]

If debt hasn't bombed Japan yet, we'll be fine.

[Dilan Esper]

I'm somewhere between these two poles. No, Wickard isn't a decision on the level of the ones you mention. It doesn't belong in the "anti-canon".

But it is a bad decision that, among other things, became the authorization for the War on Drugs.

The reality is conservatives are wrong about the broad strokes they paint on the commerce clause (e.g., the notion that manufacturing isn't commerce is one of the dumbest legal arguments ever accepted by a majority of the Supreme Court) and the biggest reason the federal government is so much more powerful is that so much more commerce is interstate in 2023 than it was in 1787, not because of dastardly liberal justices.

However, conservatives are right about Wickard. The commerce clause does implicitly draw a distinction between commerce among the several states and commerce wholly within a state. And unless the latter involves an Indian Tribe, the commerce clause does not grant Congress the power to regulate it. Put simply, a child's lemonade stand, selling beverages made with locally grown lemons and sugar, is not part of the interstate market for anything. And the same thing should have been true for Angel Raich's medical marijuana and Filburn's subsistence farming. And you can draw that line and preserve local autonomy without doing violence to the awesome power Congress has to regulate interstate markets.

[Brett Bellmore]

The Supreme court has a lot of days that should live in infamy. Korematsu, Dred Scott, Plessy, Slaughterhouse, Raich... I do think Wickard belongs on the list, though, because it took the very limited interstate commerce power, and turned it into a power to regulate all commerce, not just interstate commerce.

[Bob from Ohio]

Wickard marked the end of the original republic, it greatly expanded the powers and role of the federal government and largely re-made states into mere administrative departments of the federal government.

[Mr. Bumble]

Guess you missed "another".

[Dan Schiavetta]

It gets debatable with church-run businesses. The IRS imposes an "unrelated business tax" but there is a gray area, for example in Jimmy Swaggart Ministries v. Board of Equalization of California, which I summarized here on January 17.

[Brett Bellmore]

The War on Drugs actually got its start with earlier rulings permitting punitive levels of taxation on disfavored products. The NFA's tax on machine guns was an application of existing precedent concerning taxing narcotics.

[bernard11]

However, conservatives are right about Wickard. The commerce clause does implicitly draw a distinction between commerce among the several states and commerce wholly within a state. way

No. They are not right. Wheat is a commodity sold in interstate as well as intrastate markets, and these markets cannot be separated, as one influences that way.

And Filburn, btw, was not a subsistence farmer.

[Brett Bellmore]

My reaction is, "So what?". I don't think necessity amends the Constitution, still less convenience.

And, actually, I suspect that without that extension, you'd today see much more local commerce, due to the advantage of avoiding federal jurisdiction.

[not guilty]

Mine did. I hope Professor Volokh will offer an explanation.

[Commenter_XY]

Mine seems to have been 'memory-holed' as well. Perhaps it is now gone.

[Stephen Lathrop]

Mine disappeared. Maybe because I posted a shorter-than-average comment.

[Kazinski]

I already know why.

I just hit submit on a comment criticizing Joe and Hunter and the whole thread blew up.

[MoreCurious]

Yes. Maybe the conspirators are tired of hearing about billionaire collectors of Nazi memorabilia.

[John F. Carr]

He usually edits the post date a few times on Thursday so the open thread is at the top of the time-sorted list. He may have accidentally set it to post in the future.

Or one of us got too close to the truth.

[Voize]

Like you've never done that before.

[grb]

Kazinski : "I already know why"

Alternate theory : I heard the latest revelation of Thomas corruption and rushed to Volokh to see the news play across the Thursday comments. But the Deep State (Volokh-edition) burned down the entire thread trying to bury the story!

(Like an army might burn down its own town as it retreats)

[Brett Bellmore]

The states didn't have a constitutional problem of lacking the general police power, to have to circumvent.

[Brett Bellmore]

So are limitations on grants of power. You're setting up a situation where the only way to avoid the federal government claiming complete power in an area is to grant it none at all, because any limitations will be gamed away.

The commerce clause does NOT read, "To regulate", it has a lot of other words in there, and any legitimate reading of the clause has to give them force.

This is like a grounds keeper told to mow up to the fence, who thinks the fact that some blades of grass growing up against the fence might otherwise escape entitles him to rip the fence out and mow wherever he pleases.

[Krayt]

Yes, grants of power are meant to work.

Which fraction are actually involved in smoothing over trade among the states, and which fraction are a target rich environment for federal corruption getting in the way, using it to hurt political enemies, or legislating fads that have nothing to do with smoothing interstate trade?

[Brett Bellmore]

Come on, you've seen James Carville. It's not a question of whether there ARE lizard people, just how many.

[bevis the lumberjack]

The electric stoves will actually be cold because there won’t be enough power to run them.

Nice of you to make fun of something that jacks up costs for ordinary people. Are you one of those elitists I keep hearing about?

[Dilan Esper]

Katzenbach v. McClung might have come out the other way had Wickard gone the other way, but Heart of Atlanta Motel would not have. At most you would have had some greater privilege for people to create very, very local businesses that discriminated, the way private clubs can discriminate now.

[Dilan Esper]

Again, interstate commerce has expanded so that much of what was once local is now interstate. So, for instance, in 1787, the purchase of shoes might have been a local transaction, with a local shoemaker selling shoes made from the hides of locally raised cows.

Now, you buy a shoe and it's an interstate transaction (and indeed an international one). So Congress didn't have the power to regulate it in 1787 but does now.

But that doesn't mean that when something in this current world really is done totally locally, Congress must have the power to regulate it. Carving that out in no way disables the commerce clause.

[Sarcastr0]

Brett, you formalist precepts are not the only way to be.

But even under them, as I've told you before, Wickard comes out of McCulloch. It is necessary both pragmatically AND allowed for formally in the Constitutional text.

You always reply that this interpretation has no limit. This 1) ignores all the precedent about subsequent limits to Congressional power, and 2) is a switch from your previous textualist formalism to a practical argument. Because you always end up revealing how you are arguing from ideology, not text or originalism or anything else.

Which, to be fair, is how the OG originalists in the 1980s as well. Congrats on keeping their old outcome-oriented-but-tell-yourself-otherwise flame alive.

[Sarcastr0]

No, Bob, the Civil War did that.

If you read history, you would see that Wickard was not some turning point in American society or politics or anything. It doesn't show up at all.
It's a specific retroactive boogeyman of a certain brand of legal crank. That is all.

[Frank Drackman]

What's so Civil bout' wah anyway?

[Bob from Ohio]

"If you read history,"

Yes, only you do that. Its not possible to draw different conclusions than you do.

[Frank Drackman]

Showing your myopia, and her voice was even more grating than Hillary Rodman and Common-Law Harris.

[SRG]

de gustibus...

[Sarcastr0]

Slaughterhouse is wrong, but not really going to live in infamy unless you're really into consistent logic from human-created institutions, in which case you'll never be happy.

[Frank Drackman]

Couldn't a VW/Porsche/BMW/Mercedes by considered "Nazi Memorabilia"??? VW was Adolph's personal baby (wouldn't have one myself, I prefer Amurican Brands, no matter where they're built) Still don't get my Jewish Wife/Mom driving BMW/Mercedes....

Frank

[Sarcastr0]

We'll never know the counterfactual, but Wickard itself wasn't highlighted as changing the course of how things were going in the US socially, politically, or economically. Bigger fish to fry, after all.

All signs point to America heading towards having a nationally integrated economy, even if it makes Bob mad 100 years later.

[SRG]

Reality is they don't object to DC cocktail parties or the swamp, they just want to replace the people (and swamp monsters) with their people (and swamp monsters).

[Voize]

I don’t think necessity amends the Constitution

"Necessary and proper" is in the Constitution and fully effective without amending anything.

Without it, Congress would only be authorized to punish the four crimes explicitly listed: Treason, Piracy, Counterfeiting, and "Offenses against the Law of Nations". So how is it that tax evasion is a crime? Because it is necessary, to enforce the taxation power.

[Bob from Ohio]

"100 years later"

Math not a strong point?

"Bigger fish to fry, after all."

Yeah, It came out during WW2. Not surprising the initial reaction was muted.

Doesn't change what its effect was, even if pointing that out makes you mad 80 years later.

[Sarcastr0]

This case wasn't what forced the US to become the modern nation you hate, Bob.

[Brett Bellmore]

You look at state trends in pot legalization, vs federal, and you think that's really true? Pot would have been legalized a LOT sooner, in at least some states, if you didn't have the federal drug laws to deal with.

[Brett Bellmore]

Yeah, it just kicked off and enabled several generations of Jim Crow, nothing infamous about that.

[Dilan Esper]

I don't think Wickard flows out of McCulloch. McCulloch was about a national bank that was going to do tons of interstate business. Wickard was about a subsistence farmer growing crops for his own family and livestock. One's local, the other isn't.

[Sarcastr0]

I'm going to continue to push back on the general thesis that legal decisions have an inchoate limit based on 'context.'

If it's based on Constitutional language, then it's limited by the Amendment in play. Which is a much brighter line.

To wit: the fundamental rights analysis in Griswold is broadly applicable for EPC cases. Or was, until Dobbs. But fundamental rights don't go much beyond 14A and 5A.

Miranda was narrowed by the Court after the fact; the case about impeachment was not an obvious outcome at all.

[Bob from Ohio]

It allowed the federal government near unlimited power over all facets of US life. I think that's bad, you love it.

[Dilan Esper]

I agree it's not infamy. As I said initially, conservatives overstate how bad Wickard is.

But I think an interpretation of the commerce clause that just says it means Congress can regulate even the most local commercial activity is a bad interpretation. The clause limits the power. The limits don't mean THAT much in 2023 because most commerce really is interstate, or foreign, or with Indian tribes. But truly local non-Indian commerce is excluded (unless the regulation of them would truly be necessary to ensure a national scheme of regulation could function) and I think the arguments why it is not are bad arguments.

[Brett Bellmore]

But, as I've pointed out, if you had the pre-Wickard interpretation in place all this while, a lot more of the commerce would be local, because being local would allow you to avoid federal regulation. Every state would have it's own manufacturers of a lot of products that didn't have to deal with the federal regs.

[Dilan Esper]

I'm highly skeptical of that, Brett.

First, it's pretty hard to avoid interstate commerce. Raich did it IMO (despite SCOTUS ruling otherwise), but she did it by growing small amounts of marijuana on her own property

And second, if you look at other countries that don't have federalism or a commerce clause, it's clear that the profitability of participating in national markets and global supply chains far outweighs the cost of regulation.

Just to take the facts of Wickard itself, I doubt there were too many farmers who were going to do what Filburn did, because doing that would leave money on the table.

[bernard11]

Just to take the facts of Wickard itself, I doubt there were too many farmers who were going to do what Filburn did, because doing that would leave money on the table.

What are you talking about? How would it leave money on the table?

They had quotas, for Pete's sake. That was the whole idea. If they needed wheat on their farms why wouldn't they exceed the quota andthen use what they weren't allowed to sell on their farms?

[Dilan Esper]

bernard:

To avoid the quotas, you had to not sell any wheat on the interstate market and just subsistence farm.

[Sarcastr0]

McCulloch was not about the specific facts; it was about what necessary and proper means.

[Dilan Esper]

McCulloch was certainly at attempt by Chief Justice Marshall, who never met a federal power he didn't want to expand, to use what was actually a straightforward regulation of interstate commerce into an excuse to expand the necessary and proper clause.

Having said that, even given Marshall's violations of Article III in deciding it the way he did, McCulloch didn't say that regulations of purely local activities were within the commerce or necessary and proper clause if the government could assert any pretextual connection to interstate commerce. Indeed, if Marshall HAD said that, it would have so obviously been dicta and an advisory opinion that we all would ignore it anyway.

So no, Wickard doesn't flow from McCulloch. It's a different thing entirely.

[Sarcastr0]

You may not like McCulloch, but it's logic commands Wickard:

If the regulation in Wickard was necessary to fulfill the government's otherwise legitimate purpose, it becomes a proper power for the government to exercise.

Just as you can't go after CU without going after Buckley, you can't go after Wickard without going after McCulloch.

And once you deny the federal government the flexibility of the necessary and proper clause, you're in a libertarian paradise that would not be viable.

[Dilan Esper]

Sarcastro, no matter how broad the holding of a case, it only extends to those things that are in the same class.

McCulloch would certainly mean that a rational basis test would apply to anything on the scale of a national bank. It in no way commanded that purely local activity would be permitted based on any pretext of connection to national commerce. Anything Marshall said about that was an advisory opinion (something he was good at).

And the necessary and proper clause subsists perfectly well with Angel Raich's personal pot supply not being within Congress' power. Because it's not actually necessary to prohibit every possession of every small amount of marijuana to sustain a ban on interstate marijuana supply and transactions. You can ask whether something's necessary, find it often is, and still maintain some sense of reality about situations where it isn't.

[Sarcastr0]

Sarcastro, no matter how broad the holding of a case, it only extends to those things that are in the same class.

This is not something I learned in law school...a case about the extend of federal vs. state power is precedent for future cases about that subject, same class or no.

The thing about Raich was not that it extended Wickard, it was that there was a line of cases restricting Wickard, and Raich stopped that trend. I'm ambivalent about the policy upshot both as to the case at bar and to the trend in commerce clause cases, but think either outcome in Raich would have been legally defendable.

[bernard11]

Wickard was about a subsistence farmer growing crops for his own family and livestock.

This strips the case of all context, something its critics consistently do.

[Dilan Esper]

Sarcastro, it is often the case that a legal text, including language of a case, does not get applied to a very different context. For instance, Miranda turned out not to apply to the use of statements for impeachment (see Harris v. New York and Oregon v. Haas). The broad statements by Justice Douglas in Griswold v. Connecticut does not mean you can make any unenumerated rights claim based on the supposed penumbras of the Third Amendment. Flood v. Kuhn does not mean that in every context silence by Congress precludes modification of court interpretations of statutes.

Indeed, before Wickard, there were any number of Supreme Court cases that rejected application of the purported necessary and proper dicta of McCulloch to cases involving supposedly local commerce. I don't think much of Hammer v. Dagenhart (now THERE'S a case for the anti-canon) but there's no doubt that if the broad dicta of McCulloch were actually law, Hammer has to come out the other way.

So no, the Court did not have to do it. And in fact, saying that it is necessary to regulate every grain of wheat fed to Filburn's own family in order to prop up the price support system is complete bunk. It's a false statement, and the courts ought not to indulge in false statements.

[bernard11]

saying that it is necessary to regulate every grain of wheat fed to Filburn’s own family in order to prop up the price support system is complete bunk.

"Bunk?"

What is that based on? How much wheat could have been diverted into purely intrastate use? What would have been the effect on the interstate price of wheat?

I don't know, and neither do you, but do you really doubt that wheat farmers wouldn't have found all sorts of ways to do that with excess wheat? I don't.

Your claim is nonsense.

[Sarcastr0]

You think Brown would have come about in the 1870s were it not for the Slaughterhouse Cases?

You're writing quite the alternate history there, and I don't see it.

[Sarcastr0]

It's less that I love it, and more that you are so extreme you believe things that aren't true.

It’s not like post-Wickard, cases about the extent of federal power ended. You’re writing a counterfactual history that I don’t think can be supported; America was going to modernize, and the Constitution does not incorporate Ayn Rand’s Atlas Shrugged; Wickard was the only reasonable interpretation in a growing nation.

And of course the Federal Government doesn’t have near unlimited power over all facets of life. Other than in my job, I don’t really deal with the federal government much except wrt taxes.

Wishing we stuck to a pre-modern economic system, and picturing the utopia we would realize from it, is a bit pastime among some of the more disaffected ideologues. But it’s all windmill tilting against modernity.

Though to be fair, hating Wickard enough opens Federalist Society doors to a Federal judgeship, so there is that.

[Dilan Esper]

Wickard was the only reasonable interpretation in a growing nation.

I don't see this at all. Without Wickard Congress would still have enormous powers because the vast vast majority of commerce actually is interstate, international, or with Indian tribes. There'd just be these small pockets of non-interstate commerce, like growing marijuana for your own use, or children's lemonade stands, or maybe some local service provision like babysitting and the like, that would be outside the scope. And none of that would wreak any interference with the growth of the nation, almost all of which occurs in interstate and international sectors anyway.

[Sarcastr0]

First, you underestimate the allure of a loophole. Second, you underestimate the administrative burden required for such carveouts in a larger federal program.

But for all that you could be right. It's a counterfactual; maybe Wickard was no big deal. I think I'm right, but I must acknowledge that you're also smart, and I can't really prove my crystal ball is better than yours.

If you are right, I have no doubt some other evil case would be pointed to as the End of our Freedom by the free market utopians around here.

[Dilan Esper]

I agree with your last point.

But I don't think local carve-outs are that difficult. Right now, there's an exception in civil rights laws for employers of less than 15 people. As far as I know nobody contends this is either difficult to administer, has been systematically exploited as a loophole, or prevents the administration of the general rule.

And remember, many of these federal laws don't work well against local conduct anyway. It isn't as if federal prohibition of local possession of marijuana is some smashing success as a government program or that it isn't circumvented. So maybe you'd make it slightly easier. So what?

[Sarcastr0]

The growth of the administrative state does make carveouts easier. But that's really a post-1970 thing. Heck, maybe an alt-Wickard would have grown the administrative state faster than in our world!

I'd point more to regs like that in Lopez and Morrison, which relied on Wickard's commerce clause interpretation. They were struck down, but that was an explicit narrowing of Wickard to do so. I'm sure there are other regulatory schemes (drugs spring to mind of course) that still rely on it. Are they load-bearing for our modern system? Harder to say; maybe you're bringing me around!

[Dilan Esper]

I think if you tasked administrative agencies and Congress with "leave out the truly local activity", they would very likely leave out the truly local activities, or alternatively make more effort to actually document the connections between whatever they were doing and interstate commerce.

BTW, I think Morrison, rather than Wickard, is probably the best argument for the "commerce clause should encompass everything" view. Because in Morrison Congress really did put in a lot of work to document connections to interstate commerce because they knew this was a potential problem with the statute, and the Court didn't care about all that homework. So as a result, a very good statute that was trying to deal with a real national problem the states were failing at (which, as we know, was what the Committee in Detail wanted Article I Section 8 powers to cover) was struck down as outside the commerce clause. That's... not good. (Neither is the commerce clause holding in NFIB v. Sibelius, by the way.)

[Bob from Ohio]

"I don’t really deal with the federal government much"

Except for when you turn on a light or flush a toilet, among other things.

Don't you work for the feds too?

[Brett Bellmore]

I think Brown came about on June 9th, 1868, then the Supreme court canceled it.

[Sarcastr0]

You make a lot of assumptions. And you vastly overestimate the power of the Court.

The Court wasn't the one driving Reconstruction, and then pulling back from it.

[Dilan Esper]

Actually, long before Dobbs there was Glucksberg. Which, um, didn't apply the Griswold framework. And, hell, not even Roe applied it. And Casey limited Roe. And cases like Lawrence v. Texas and Obergefell apply a completely different analysis.

Because, guess what-- all these contexts are DIFFERENT, and in fact the Court does not robotically apply the same legal test to every different context.

[Sarcastr0]

It sounds less like you’re laying out the operation of the law, and more like you’re noticing that Courts often narrow their decisions as time marches on. IOW, the context is applied after the fact, when the court so chooses. It is not a general assumption. Quite the opposite, in fact.

Also, you can’t count Kennedy decisions, that’s cheating, since he is not one to specify doctrinal hooks or context.

[Dilan Esper]

I gave other examples like Flood v. Kuhn above. Do you think Flood v. Kuhn means in every case where a legislature is silent, a prior incorrect interpretation may not be overturned? Because SCOTUS doesn't think that. Heck, it doesn't even think that in other antitrust areas.

Or here's one. How about gun rights. Before, we were told that fundamental rights draw strict scrutiny. But the newly found right to bear arms does not- it uses text, history, and tradition. Again, I'm not the biggest fan of that approach, but it shows you can't just import a test from one area to a completely different one.

McCulloch has never been the Court's only test for the divide between state and federal power, and it certainly hasn't been when it came to local activity. Wickard could have easily come out the other way without doing any violence to McCulloch.

[Purple Martin]

Induction 'burners' are actually cold in that they emit no heat. The pot heats up and transfers some amount of heat to the glass surface it's sitting on.

And why are you making fun of the far greater number of ordinary people using electric rather than gas stoves?

Electric stoves are overall more common in the U.S., with 68 percent of households owning one opposite 38 percent which have a gas stove. In a majority of states, electric stove ownership surpasses 70 percent of households.
Chart: Electric or Gas? What the U.S. Is Cooking On | Statista

Gas cooking has long been on track to die out, just like gaslights before them (so is gas heat, but more slowly).