Supreme Court Hears Raich Case

December 04, 2004

Fred Gardner, Counter Punch

People anxious to watch oral arguments in Ashcroft v. Raich started arriving outside the U.S. Supreme Court at 5 a.m on Monday, Nov. 29. Frank Lucido, MD, Angel Raich's doctor, and Jeff Jones of the Oakland Cannabis Buyers Co-op were second and third. By 9:00 more than 200 concerned citizens had formed an L-shaped line across the wide plaza and then east on Constitution Avenue.

What once would have been an unobstructed view of the Capitol (with symbolic meaning, since the Court rules on the legality of what Congress does) now consists of backhoes, trucks, ditch-witches, porta-potties, barricades (huge round tubs of concrete), cyclone fencing, wooden fencing, and non-union construction workers and rent-a-guards milling about. The sun was bright, the temperature around 400; the heavy equipment was kicking fine sand into the air as the line began to move.

More than 100 media types and others with connections had guaranteed seats. Reporters who cover the court regularly get box seats along one side of the courtroom (stage left); we in the overflow were seated behind them and behind a wall with arched openings. Not all the Justices could be seen through the arches. Your correspondent had an excellent view of Justice Stephen Breyer (thin, bald, sepulchral) and Clarence Thomas (he looked positively bored and was the only judge who asked no questions). A public information officer gave out a scorecard with pictures of the Justices, numbered 1-9, and she held up fingers to indicate who was speaking. Scalia was #4, the clean-up hitter.

Justice Stevens presided because Chief Justice Rehnquist is undergoing treatment for thyroid cancer. Stevens announced that Rehnquist intends to read the transcript and vote on Ashcroft v. Raich. Activists are spinning fantasies about Rehnquist, unable to bear the nausea of chemotherapy, obtaining relief from cannabis and turning into an advocate. I heard versions of this inane riff from half a dozen seemingly intelligent people. It's more likely that William H. Rehnquist would cast a vote against Raich with his last bit of mortal energy. The Controlled Substances Act -which this case is really all about- was his work product. He helped draft it as a young lawyer in the Nixon White House (having gotten the job for, among other services rendered, hassling black voters in Arizona). If Rehnquist were, in his hour of need, to use cannabis as an anti-emetic, he would undoubtedly figure out why it was righteous for him (but not you) to do so. For years he has taken strong painkillers on a daily basis to cope with back pain. He doesn't define himself as an addict because he checks into treatment periodically, i.e., he's in control of the situation!


The Petitioner's Case

Each side gets half an hour to restate and defend the arguments made in written briefs that the judges have already read. The petitioner goes first. The Department of Justice and the Drug Enforcement Administration are petitioning the Court to invalidate an injunction, issued by the 9th Circuit Court of Appeal in October 2003, allowing Angel Raich and Diane Monson to obtain and use cannabis in accordance with California law. Acting Solicitor General Paul Clement re-made the key points: Congress is entitled to enforce the Controlled Substances Act. Californians growing and using cannabis within the state will inevitably have an impact on interstate commerce. The relevant precedent was set by Wickard v. Filburn, a 1942 case upholding the federal government's right to limit the amount of wheat a farmer could grow for home consumption.

O'Connor interrupted Clement to ask why the Lopez and Morrison rulings shouldn't apply. In Lopez (1995) the Court struck down a federal law banning possession of a gun within 1,000 feet of a school because it didn't involve economic activity. Morrison (2000), similarly, struck down a law entitling rape victims to sue assailants in federal court. The Lopez and Morrison rulings were said to reflect the Court's 'new federalism,' a tilt towards states' rights.

Lopez and Morrison didn't undo Wickard, said Clement. O'Connor noted that the marijuana used by Raich and Monson did not involve interstate commerce. But undoubtedly some marijuana would, said Clement, 'diversion would be inevitable' if all California's medical users and their growers became legal. O'Connor's tone implied that she was trying to poke holes in the government's position, but she could have been trying to elicit winning arguments to employ on behalf of the government in the Supremes' internal debate.

O'Connor asked whether California law enforcement wouldn't suffice to ban diversion to the non-medical market. 'Marijuana is a fungible product,' said Clement, meaning there's no way to distinguish 'medical' marijuana from the non-medical kind; one could be sold instead of the other.

In response to questions by Scalia and Kennedy, Clement repeated that diversion of marijuana was inevitable in an annual national market of $10.5 billion. Any 'island of lawful possession' would undermine regulation by Congress. (These gentlemen try to avoid saying 'Prohibition.') Clement falsely stated that any beneficial effects of marijuana could be obtained legally via Marinol. Marinol is synthetic THC in pill form. Herbal cannabis contains hundreds of other compounds, some of which exert modulating effects. Precise dosage and immediate onset can be achieved by smoking.

Justice Kennedy asked about the impact on price if Californians were allowed to grow their own marijuana for medical use. Clement said the price would go down, the opposite of what Congress wants. Congress is trying to increase the price of marijuana on the black market. Also, sales of Marinol would be affected if people could grow and use cannabis -an obvious impact on interstate commerce. And the CSA trumps a doctor's opinion that marijuana is medically necessary. [Next time you're sick, call a Congressman.]

Stevens asked if a District Court could find, contrary to Congress, that marijuana is effective medicine. Only if the case involved a review of the scheduling decision, according to Clement. The FDA is not anti-THC, he said, witness Marinol being moved from Schedule 2 to Schedule 3. [Which actually shows that the FDA is not anti-corporate.]

Ginsburg and Souter asked about challenges to marijuana's Schedule l status and its alleged benefits. Clement said that the Institute of Medicine Report released in 2000 found that smoked marijuana 'has no future as medicine.' Science [i.e, the drug companies] will find and synthesize the good components of the plant minus the bad components. Smoking is harmful per se. [The Institute of Medicine Report is like the Bible, you can quote it to make any point.] The Court should not second-guess Congress.


The Respondent's Case

Randy Barnett, a libertarian professor of constitutional law, argued for Raich-Monson that their activity -growing and using cannabis as medicine- had been entirely intrastate and non-economic. The feds need not ban such activity in order to regulate illicit drugs.

In response to questions from Kennedy, Barnett said that the fungibility of marijuana does not mean possession for personal medical use is economic activity.

Scalia compared possessing marijuana for medical use to owning a plant or animal protected by the Endangered Species Act. Barnett said that banning ownership of endanged species 'might be essential to a broader regulatory scheme,' but owning marijuana for personal medical use was distinguished by state law. Scalia was skeptical that that California could narrow the scope of the activity to medical users. He invoked 'reports of whole communes with lots of people in them' growing marijuana.

Justices Breyer and Souter pursued the point that California couldn't effectively limit the set of medical users. Breyer foresaw large numbers of cannabis consumers resulting in lowered prices, thus undermining the feds' ability to control contraband. Barnett implied that the government's figure of 100,000 overestimated the number of medical users in California. [That estimate appeared in the Spring '04 O'Shaughnessy's and may be an underestimate today.] Souter speculated about 'millions of medical users buying marijuana on the street.'

Ginsburg asked whether a ruling for Raich-Monson would authorize cultivation of marijuana by medical users in states that hadn't legalized it. Barnett said it depended on how the Court's ruling was crafted. If the activity is non-economic, Congress can regulate only as needed 'to enforce a broader regulatory scheme.' Congress doesn't have to ban medical use of cannabis in order to limit interstate commerce in contraband.

Scalia asked how the Raich case differed from Wickard v. Filburn, in which a family was eating their homegrown wheat. Barnett said Filburn was feeding wheat to livestock that were sold on the market, not just eating it. 'The wheat was grown as part of a commercial enterprise.'

Stevens asked about the likely effect on the price of marijuana on the interstate market (if Raich prevailed). Barnett, not sounding totally sure, predicted 'a trivial reduction.' Stevens disagreed. There followed an exchange it which Barnett was asked about the population of California and couldn't provide the answer. (Kennedy did: 34 million.) Souter tried to estimate how many might be in chemotherapy -100,000? His point was, 'isn't it economic activity if it has a sizeable effect on the market?'

Barnett differentiated economic activity from personal activity by using prostitution as an example of the former. 'Substitution effects between prostitution and sex within marriage does not make sex within marriage economic activity. The nature of the activity determines if it is economic.'

At this point Breyer suggested that Raich-Monson hadn't exhausted their administrative options. 'Can't your clients go to the FDA and get it rescheduled? Then if the FDA rules against them' he sounded like a civics teacher explaining how (and that) the system works 'they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn't I believe as a judge that it is doubtful there is a medical benefit? After all, medicine by regulation is better than medicine by referendum.' This last phrase was quoted by every reporter who filed a story. It echoes the enlightened-sounding comment of Breyer's friend Harold Varmus, former director of the National Institutes of Health, after Prop 215 passed: 'Nobody wants to settle medical issues by plebiscite.' Varmus convened a panel of 'experts' to settle the issue. That was back in '97.

Barnett urged Breyer to read the amicus brief written by Rick Doblin, PhD, describing the endless runaround that would-be researchers have gotten over the years from FDA, DEA, NIDA, and HHS. He also pointed out that the Institute of Medicine Report acknowledges that some people benefit even from smoked marijuana. Barnett's tone was slightly apologetic (smoking, the sin of all time!) and he missed an opportunity to inform the Justices that for nausea there is no better drug and delivery system than herbal cannabis and inhalation. Nor is there any other drug to enhance appetite.

Kennedy asked if prescriptions were limited to cases where marijuana saved lives. 'It is limited to a list of illnesses,' said Barnett, instead of acknowledging the open-ended wording of the California law and the doctors' gatekeeping role.

Ginsburg asked a final procedural question: can you enjoin criminal prosecutions? Barnett said Raich-Monson were seeking to enjoin the seizure of marijuana, which had already occurred.

Clement, in the few minutes he had reserved for rebuttal, emphasized that the case wasn't about two individuals. He repeated estimates of 100,000 to 170,000 medical users in California. He quoted the broad definition of illness that can be treated by cannabis under California law. He cited a California case (Rutherford) in which the defendant, caught with 19 separately packed ounces of marijuana and a scale, was allowed to present a 'medical-user' defense. Clement also cited the WAMM case, in which 250 cannabis users -a veritable hoard- claimed protection under the law.


Those who have been following Ashcroft v. Raich in the media know that most learned observers think the Justices' questions implied a looming victory for the federal government. Linda Greenhouse of the NY Times, in the press room after the hearing, predicted a 9-0 vote. However, Pebbles Trippet of the Medical Marijuana Patients Union expects support for Raich from Ginsburg, Thomas ('the commerce clause scholar on this court'), Stevens, and O'Connor (who is often a swing vote). 'Anything can happen,' says Trippet.

Whatever happens, coverage of the Supreme Court hearing has made the American people even more aware that marijuana is safe and effective medicine. Angel Raich and Diane Monson, although opposites in many ways, are both convincing advocates. There is a desperate edge to Angel, who looks emaciated and says urgently that she would die without cannabis (from which she derives no pleasure except pain relief). Monson is calm and businesslike -an accountant, she is living proof that cannabis use doesn't undermine one's ability to do meticulous work that requires sustained attention to detail. Her claim isn't that cannabis is keeping her alive, only that it enables her to function.

More commentary and analysis in the days and weeks ahead. Some of our shrewder sources are among the 120 lawyers in Key West, Fla., attending NORML's 21st annual marijuana-defense-specialists' conference... In D.C. We learned that the NORML Board has selected Allen St. Pierre to succeed Keith Stroup as the new director. St. Pierre graduated from UMass/Amherst in 1989 and moved to Washington, intending to go to law school. Instead he went to work for NORML as communications director in '91 and has been there ever since (as deputy director since '93). In recent years NORML has been out-fundraised by the slicker, smoother Marijuana Policy Project. St. Pierre may be too serious and straightforward to reverse this trend. Good luck!

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