The controversy over medical marijuana made its first -- but undoubtedly not its last -- appearance before the nation's highest court on Wednesday, as justices heard lawyers for the government square off against attorneys representing California medical marijuana distributors. Some ill-informed media coverage notwithstanding, the Supreme Court will decide only whether federal law allows a "medical necessity" defense in federal civil actions against medical marijuana distributors. The case does not present the court with the opportunity to rule on the legality of medical marijuana laws on the books in eight states.
As medical marijuana supporters and opponents argued outside the marble edifice, inside the Supreme Court, lawyers for the Oakland Cannabis Buyers Cooperative attempted to persuade skeptical justices both that marijuana is medicine and that medical marijuana distributors have a medical necessity defense against federal prosecution.
Justices Ginsburg, Rehnquist and Scalia evinced some interest in marijuana as medicine, with Ginsburg asking about sick patients and inquiring, "Am I wrong in thinking there has been quite a bit of this going on?"
Scalia said the choice to use medical marijuana was an "easy gamble" for patients. "A jury versus the grim reaper, I'll take the jury any day," he commented.
But while court-watchers cautioned against drawing conclusions on the justices' thinking from the oral arguments, it seemed apparent that co-op lawyers Robert Raich and Gerald Uelmen were facing an unsympathetic audience.
Justice Kennedy challenged Uelman on the extent of the exception for medical marijuana use, arguing that to allow it would amount to a "huge rewrite of the statute." Justice O'Connor weighed in with her opinion that the US appeals court ruling granting the exception "appeared to create a blanket exception to the Controlled Substances Act."
The federal government, bolstered by last week's ruling in the Gettman-High Times marijuana rescheduling petition with the Drug Enforcement Administration (see related story below), argued that there are no legitimate medical uses for marijuana and warned that a favorable ruling would lead to the creation of "marijuana pharmacies."
The Supreme Court is expected to issue its verdict by June.
While advocates are loath to predict the outcome, some are preparing for a negative ruling.
Jeff Jones, founder of the Oakland Co-op, was upbeat. "I think we got our day in court and we're eagerly awaiting the wisdom of the high court in their ruling," he told DRCNet. "While we didn't really get the discussion of the 9th and 10th amendment issues of a limited and enumerated federal power, the federal government is still up against the wall. If they don't get a complete victory, they will have a hard time bottling this up. And even in the worst case, we are prepared to take proactive action to ensure the rights of California medical marijuana patients."
Jones also pointed out that the state's medical marijuana law was not at risk. "Given the Solicitor General's statement that they are not seeking to preempt our state law, we've already one," said the clean-cut, conservatively suited Oaklander. "Patients will simply grow it themselves. Last time I checked it's still against federal law, but if they're unwilling to come into California and kick down doors to arrest patients, then they have an effectively unenforceable law. And even if they do, good luck finding a jury to convict."
Jones' seemed to be the consensus opinion among activists.
"We'll be no worse off than we were before in the event of a negative ruling," the Marijuana Policy Project's Rob Kampia told DRCNet. "We never worked in state legislatures under the assumption that it was somehow legal under federal law, or that medical necessity defenses could be used in federal court, or that pot could be distributed," said Kampia.
"If the court rules against us, we'll simply continue our strategy of changing state laws," he added. "It won't change our strategy or behavior."
Kevin Zeese of Common Sense for Drug Policy perhaps best summed up the collective wisdom of the reform movement when, at a panel on medical marijuana at the libertarian Cato Institute earlier in the week, he told the audience, "No matter what the Supreme Court does, the medical marijuana movement has won. There is no way the federal government can put this genie back in the bottle."