(Tuesday DRCNet issued a special report to bring our readers a taste of what it was like to be present at the Supreme Court medical marijuana hearing last Monday. We reprint that bulletin in this issue.)
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.