The High Court Is Addled by Medical Marijuana

June 14, 2005

EDITORIAL, Pittsburgh Post-Gazette

Discussions about the likelihood of one or more Supreme Court justices being appointed during the Bush administration often assume that the nominees will turn out to be cartoon-character stereotypes -- their voting patterns on the court preordained by their ideological inclinations.  As history and recent rulings have shown, that's not always true. With the recent decision on interstate wine shipments, and last week's ruling on medical marijuana use, majorities have been formed with some strange bedfellows, and conservatives and liberals alike have found themselves torn between their basic beliefs.

In its medical marijuana case, decided 6-3, the court overturned a decision by a federal appeals court that sided with two California women who use marijuana to blunt the pain of medical problems.  Having passed a referendum in 1996, California is one of 11 states that allow the medical use of marijuana, despite what federal law says.

But does the federal government retain the power to regulate marijuana use, even when the marijuana was not imported from across state lines? Yes, said the majority, relying heavily on a 1942 precedent involving the growing of wheat for home consumption.

In dealing their blow not just to the democratically forged consensus of various states but to those suffering individuals helped by marijuana, some of the justices had a bit of a problem.  The recent trend of the court has been to scale back the power of the federal government under the Constitution's Commerce Clause.

Indeed, the justices who have led the charge have been dubbed the 'federalism five.' Yet two of their number -- the ultra-conservative Antonin Scalia and his more moderate conservative brother Anthony Kennedy -- joined liberal justices to form the majority.

The three other conservative believers in federalism lined up in the minority -- Chief Justice William Rehnquist, Justice Sandra Day O'Connor and Justice Clarence Thomas, who was the most arch in his dissent: 'If Congress can regulate this [medical marijuana use] under the Commerce Clause, then it can regulate virtually anything -- and the federal government is no longer one of limited and enumerated powers.'

Why did the other conservative justices rule the way they did? The worldly, cynical answer is that the law is not neat and one doesn't have to be a liberal to be 'an activist judge' to reach a favored conclusion.  Count intellectual consistency as another casualty in the war on drugs.

The medical community is divided about marijuana for medical purposes but many sufferers swear by it -- and in states that have approved such a use the federal government need not be involved.  But the inability of the federal government to make sensible distinctions is its own sort of reefer madness.

That some justices had to perform legal gymnastics to dismount gracefully from their previous positions may not matter in the end.  Most of the prosecutions in marijuana cases are brought by states and they may not act.

Ideally, Congress would pass a law recognizing that anti-drug laws don't have to mean trouble to ordinary Americans who are very sick.  Unfortunately, that won't happen anytime soon.  Not entirely by coincidence, the court's opinion mirrored the temper of the political times. 

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