On Law: Don't Bogart that marijuana case

April 21, 2005

Michael Kirkland, UPI

A Supreme Court decision on medical marijuana is more than ripe for delivery. If the case hangs around any longer without a ruling, like ripe Camembert it will begin to smell. <!-- OAS_AD('Middle'); //--> x;rid=319;tid=20;ev=2;dt=3;ac=42;c=431;' target=_blank>

Sometimes, the only thing predictable about a Supreme Court resolution is its unpredictability.

But still, we ink-stained wretches in the Supreme Court pressroom continue to try to predict which way the wind will blow.

If you ever get the chance to talk to a justice, you'll be impressed by the focus that he or she brings to the law. That holds true whether you're chatting with Justice Clarence Thomas, the soul of human warmth, or with the rather icy Justice Ruth Bader Ginsburg.

As a rule, the Supreme Court press corps is also a brainy bunch, and individuals within it often possess a keen sense of intuition, built up over decades of reporting from the court, as well as their truly outstanding analytical skills.

Hold on a second. Let's exclude me from that 'brainy' evaluation.

Not to brag, but I used to have a mind like a steel trap. Now it's more like a swamp. There's lots of stuff still lurking down in the depths, but every once in a while something crawls out and gets away.

Still, I know what I know.

When the high court holds on to a case, without handing down a decision, for five months after hearing argument, something is up.

Let's recap the case.

Ten states allow the medical use of marijuana to some degree. They include California, Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington. Maryland has reduced the penalty for the medical use of marijuana to a small fine.

The case before the Supreme Court involves Angel McClary Raich and Diane Monson, Californians who use marijuana to relieve the symptoms of illness, and Raich's two unnamed caregivers who grow marijuana for her. Three of the four live in Oakland.

Raich claims to have a variety of illnesses. Monson grew medical marijuana in her 'Prop 215 garden.'

California voters exempted the use of medical marijuana from its criminal laws in a 1996 referendum, Proposition 215.

In October 2002 the four state residents filed suit in federal court against the Justice Department after the Drug Enforcement Administration swooped down on Monson and took her six marijuana plants.

A federal judge refused to issue an injunction against the Justice Department for continuing to prosecute those using medical marijuana. However, a federal appeals court panel issued a temporary order restraining the department, saying the four were likely to win their case on the merits.

The appeals court said Congress, which enacted the Controlled Substances Act under the constitutional clause authorizing it to regulate interstate commerce, exceeded its power under the clause when it included medical marijuana.

The Justice Department then asked the Supreme Court to review the case.

At the time of argument in November, a majority of the Supreme Court seemed poised to side with the Justice Department, which contends that the federal law pre-empts the state laws.

That wasn't just my view. Everyone I talked to who had watched the argument that day pretty much came away with the same impression.

Much of the argument revolved around whether the consumption of homegrown marijuana for medical purposes is an economic activity covered by the commerce clause and whether that consumption of homegrown product affects the illegal interstate commerce of marijuana.

The Justice Department said 100,000 people in California are taking advantage of the medical use of marijuana -- out of a 34-million-person population -- and all that use of the drug has an effect on the illegal interstate commerce of marijuana, a $10.5 billion-a-year industry.

Boston University Professor Randy Barnett, a fellow at the Washington-based libertarian Cato Institute, spoke for the challengers. He had to handle hostile questions from both the conservatives and the liberals on the bench.

As reporters compared notes afterward, the post mortem was unanimous. This case was going to be a slam dunk for the government.

So why haven't we heard already?

A quick turnaround between argument and opinion in the modern Supreme Court usually takes about a month. A turnaround of three or four months is more about average. Five or six months is really pushing it.

Which begs the question, what's holding up Docket No. 03-1454, Gonzales vs. Raich et al?

Perhaps the justices are having trouble settling on a majority opinion. Perhaps they disagree on the way they want to slap down the state laws. Or perhaps they have to scrape together a plurality in order to find a way to rule for the Justice Department. One thing they certainly will not do is rule against the government.

To do so -- to rule that marijuana can be legal in some circumstances, no matter how restricted, even if it is confined to cancer patients on their death beds in some uncharacteristic judicial outburst of compassion -- would expose this Supreme Court to more heat than it is usually willing to endure.

But maybe I'm wrong. We could find out as early as next week or as late as the last week in June, when the justices scatter like schoolchildren for their summer recess.

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(Mike Kirkland is UPI's senior legal affairs correspondent. He has covered the Supreme Court and other parts of the legal community since 1993.)



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