The next time a student complains about a con law exam, I think I’ll assign them this question. Then again, I did give them this one on my second exam (open book, take-home, and optional):

In United States v. Lopez, while the Supreme Court did not overturn Wickard v. Filburn outright, the Court clearly staked out some limitations to Congress’s use of its power to regulate interstate commerce. With that precedent in mind, consider the upcoming Supreme Court case Ashcroft v. Raich, in which the 9th Circuit Court of Appeals argued that federal regulation of the noncommercial cultivation and distribution of marijuana exceeded Congress’s commerce clause powers. You should consider the following questions: Does Raich meet the standard for interstate commerce outlined in the Lopez test? How does Raich differ from Wickard—or, aside from the crops at issue, does it not differ at all?

I also gave this one on my first exam:

In 2007, the Supreme Court will hear the case Lewis v. Boulder County School District, in which perennial Pledge of Allegiance challenger Michael Newdow represents Sally Lewis, a 16-year-old atheist and high school student in Boulder who objects to the use of the phrase “under God” in the Pledge of Allegiance, added to the pledge by Congress in 1954 (codified at 4 USC 4). Lewis advances essentially the same argument on the merits advanced by Newdow in Newdow v. Elk Grove Unified School District (2004); however, Lewis’ parents, English professors at the University of Colorado at Boulder, fully support her challenge to the law and have permitted Newdow to represent her in her case against the school district.

In the meantime, Congress has passed the Pledge Protection Act of 2005, which was signed into law by President Lieberman.* The Pledge Protection Act provides that no court created by Congress shall have original jurisdiction in any challenge to the Pledge of Allegiance, nor shall the Supreme Court have appellate jurisdiction.

How should the Supreme Court decide the case at hand? Consider the issues of jurisdiction and standing, as well as the decision on “the merits.” In particular:

• Does Lewis have standing to sue?
• Is the Pledge Protection Act of 2005 constitutional?
• Is the inclusion of “under God” in the pledge an unconstitutional establishment of religion?

Consider the court’s precedents on standing and jurisdiction, as well as the political circumstances that gave rise to the Court’s decision in Ex parte McCardle. Your response will be fortified by reference to the legal and attitudinal approaches to judicial interpretation outlined in Chapter 1 of the [Epstein and Walker].

Ok, maybe I am an evil con law prof after all.