Drug War Chronicle Report from the Supreme Court

Though a number of media
outlets have already written off the plaintiffs' chances for
success -- for example, "High Court Appears Hesitant to Endorse
Medical Marijuana" by the Associated Press -- our impression was
that the Justices asked tough questions of both sides.

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Special to Drug War Chronicle: Supreme Court Hears Raich v.
Ashcroft Case Monday Morning

Medical marijuana supporters began lining up outside the US
Supreme Court at 4:00am Monday morning, vying for a chance to be
present as the justices heard oral arguments in a case that
could force the federal government to leave medical marijuana
patients alone in states where it is legal. The case, Ashcroft
v. Raich, pits two California medical marijuana patients against
the Justice Department. It also pits the doctrine of states'
rights against the federal government's use of the
Constitution's interstate commerce clause to crack down on
medical marijuana users despite state laws okaying their use.

Angel Raich, who suffers from a variety of life-threatening
disorders, and Diane Monson, a chronic back pain sufferer, filed
suit in federal court in California after the Drug Enforcement
Administration raided Monson's home in 2001 and seized her
marijuana plants, which she was growing for medical purposes in
compliance with California law. The pair filed for injunctive
relief seeking to permanently bar the federal government from
raiding, arresting, seizing the property of, or otherwise
harassing law-abiding medical marijuana patients. They argued
that because their cultivation and use are non-commercial and
take place within a single state, the federal government has no
constitutional standing to stop them.

Raich and Monson lost in federal district court in October 2002,
but that decision was overturned by the US 9th Circuit Court of
Appeals in San Francisco last December. That decision meant that
medical marijuana patients in the states comprising the 9th
Circuit could now use and cultivate the plant without fear of
the feds. The Justice Department of Attorney General John
Ashcroft appealed the 9th Circuit's ruling. Written briefs in
the potentially landmark case were submitted months ago, and
today the Supreme Court heard an hour's worth of oral arguments
from acting Solicitor General Paul Clement for the Bush
administration and Boston attorney Randy Barnett for Raich and
Monson.

A favorable decision from the high court would extend those
protections nationwide. A decision to overturn the 9th Circuit
would merely mean that the DEA could once again conduct raids
against medical marijuana patients and providers, but would not
overturn the state laws approving medical marijuana.

As the chill pre-dawn darkness turned to sunlight outside the
Supreme Court, the line of hopeful spectators grew steadily
longer. First in line was attorney Eric Sterling, head of the
Criminal Justice Policy Foundation, followed by Jeff Jones,
whose Oakland Cannabis Buyers Cooperative lost its medical
necessity case in the same court three years ago. Following them
were a mixed bag of wildly-speculating activist law students,
medical marijuana supporters, and Supreme Court groupies, all
very grateful for the hot coffee provided by Steph Sherer and
Stacey Swimme of the medical marijuana defense group Americans
for Safe Access. By 9:00am, when the doors to the court were
opened, the crowd of hopefuls had grown to a couple of hundred
-- with only 50 guaranteed access to the actual chamber. By
then, more movement bigwigs had made appearances, as the leaders
of the country's two largest marijuana reform groups, outgoing
NORML head Keith Stroup and Marijuana Policy Project head Rob
Kampia, showed up to hear the arguments.

Bush administration lawyer Paul Clement led off the session,
asserting that marijuana had no accepted medical use, that
someone growing pot non-commercially for his own use in his own
state was subject to the jurisdiction provided by the Interstate
Commerce Clause, that a restrictive reading of the Commerce
Clause would impeded the federal government's ability to set
national policy on any number of issues, and, furthermore, that
a ruling allowing medical use unfettered by federal law would
open the door to similar arguments regarding recreational use.

But in typical Supreme Court fashion, Clement barely got started
before being peppered by rapid fire questions from the justices
-- all except Justice Clarence Thomas, who rarely asks questions
and who used the hearing today to alternately loll about in his
chair or read from a book. Wouldn't the non-commercial use of
homegrown pot reduce the illicit interstate commerce in the
herb? asked a mischievous Justice Scalia. Maybe so, Clement
reluctantly responded, but for him the important point was that
"any island of non-regulation would frustrate the regime created
by Congress."

After a half-hour of back and forth, it was time for Raich
attorney Randy Barnett. The Interstate Commerce Clause does not
apply to Raich and Monson, he argued, because "their medical
marijuana use and cultivation is non-economic and wholly
intrastate." But the justices, displaying evident concern about
the ramifications of restricting the federal government's
ability to use the Interstate Commerce Clause, shot question
after question at Barnett about whether growing even pot that
never hit the market or left the state was an economic activity
and thus subject to regulation under the clause.

The argument over the Interstate Commerce Clause pits earlier
Supreme Court decisions against each other. In a 1942 ruling,
the court held that a farmer who grew wheat for consumption on
his own property was subject to the clause because the wheat he
grew affected the overall market. But in a pair of mid-1990s
rulings by the current court, the court struck down federal laws
regarding firearms near public schools and violence against
women, suggesting that the clause should be interpreted more
strictly.

With ramifications extending far beyond the issue of medical
marijuana, the Raich case drew a high number of friend of the
court briefs and illustrated the ideological flexibility of all
concerned. Conservative Republican congressmen led by Rep. Mark
Souder (R-IN) submitted a brief calling for increased federal
power, while the southern states of Alabama, Louisiana, and
Mississippi submitted one supporting Raich as upholding states'
rights.

Justice Breyer suggested that seeking a solution in the courts
was premature. "I would think they would go to the FDA," to get
marijuana rescheduled, he suggested.

But the FDA has been consistently unresponsive to repeated
efforts to get the herb rescheduled, as Barnett tartly pointed
out. "I would suggest you read the brief from Rick Doblin on FDA
obstructionism," he said.

"What about other states without medical marijuana laws?" asked
Justice Ginsberg. "Could Congress regulate medical marijuana
there?"

"The federal government could not prosecute medical marijuana
users anywhere," responded Barnett.

"What about growing heroin or cocaine?" asked Justice Breyer.
"It all depends on the regulatory scheme," Barnett offered.

"What impact would a favorable ruling have on the marijuana
market overall?" asked Justice Stevens.

"The only impact would be a slight price reduction," Barnett
suggested.

While the justices demonstrated concern about the ramifications
of a positive decision, Angel Raich herself clearly articulated
the ramifications of a negative one. Appearing at a post-hearing
press conference on the Supreme Court steps as a lonely handful
of anti-medical marijuana activists held up signs warning that
smoked medicine is not medicine and that tens of thousands of
kids are in drug treatment for marijuana, Raich made clear what
this case is all about. "If they decide I have the right to
live, I will spend the rest of the life with my family," she
said. "On the other hand, if they decide against me, they will
be handing me a death sentence."

Supporters adjourned to a press conference at the ACLU's DC home
the Stewart Mott House, and have now begun the wait.

-- END --

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