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US Supreme Court functions as intended

The Supreme Court of the United States (SCOTUS, for the acronym-addicted) began laying out its agenda for its upcoming session by announcing the cases that it has accepted for review, and those that it has not. Among the cases that it has refused to review is the 9th Circuit Court of Appeals (federal circuit courts are the appellate courts for the federal system in the US; the 9th Circuit has jurisdiction over the West Coast) decision barring the federal government from prosecuting (or persecuting, take your pick) doctors for recommending marijuana to their patients.

The San Francisco-based 9th U.S. Circuit Court of Appeals said that physicians should be able to speak candidly with patients without fear of government sanctions, but they can be punished if they actually help patients obtain the drug.

So, this has been pitched relatively narrowly as a free speech issue, rather than as a broader liberty/self-ownership issue. That is probably a wise strategic decision on the part of marijuana advocates. I personally don’t see where the federal government has the Constitutional power to outlaw drug use in the first place, but I am old-fashioned and believe the Constitution means what it says. SCOTUS hasn’t subscribed to that view since FDR intimidated the Court into submission in the 1930s.

Nine states have laws legalizing marijuana for people with physician recommendations or prescriptions: Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington. And 35 states have passed legislation recognizing marijuana’s medicinal value.

But federal law bans the use of pot under any circumstances.

The case gave the court an opportunity to review its second medical marijuana case in two years. The last one involved cannabis clubs.

As I recall, in that case SCOTUS said that cannabis clubs could prosecuted even if they were supplying only medical marijuana users.

The optimism expressed by various advocates about the import of SCOTUS refusing to take this case is badly misplaced, in my opinion. A refusal to take a case is far short of a SCOTUS opinion upholding the ruling of the 9th Circuit, and the annals of the Court are replete with examples of cases declined, only to have the same issue come up in a different posture later on to be reversed by SCOTUS.

Still, this is qualified win for the forces of good, feel free to celebrate with your substance of choice.

19 comments to US Supreme Court functions as intended

  • that is good news.

    they’re debating the medical marijuana issue here in nz, but i’m afraid there’s too many authoritarian politicians around for anything positive to happen…

  • For once the 9th Circus Court of Appeals makes a ruling good enough for SCOTUS to decline to hear the case! For those of you in Europe, this particular appeals court has had more rulings reversed by SCOTUS than any other jurisdiction in the country.

    We’ll see what happens with our Pledge of Allegiance though…..

  • Abby


    If you look at the dissents in the Oakland Cannabis Buyers case, Stevens, Souter and Ginsburg all suggested that if a patient (as opposed to the club itself) was prosecuted under the CSA, the result would have been different.

    Also, the Ninth Circuit just heard oral argument in a case which raises the substantive due process argument (following Lawrence) for medical marijuana (fundamental liberty interest in medical treatment), as well as the commerce clause argument (growing for personal use is beyond scope of federal power).

    My dislike of judicial sophestry stops short of opposition to substantive due process jurisprudence. It has a great potential to expand personal liberty in our country.

  • Abby

    Just to correct myself, Stevens, Souter and Ginsburg concurred in the result of Oakland. But they criticized Thomas’ opinion as reaching beyond the holding and the facts with dicta related to the availablity of a medical necessity defense for a patient (rather than simply addressing the defense of third parties argument made by the club).

  • ZAthras

    Yes, it looks like all those men who fell at Gettysburg and Spotsylvania didn’t die in vain after all.

    Drugs: What America is all about.

  • R.C. Dean

    Thanks, Abby, for doing some heavy lifting on the buyer’s club case. Whenever I say “as I recall,” that is blogspeak for “I am too lazy to look it up.”

    The commerce clause argument is interesting, because it is a replay of the the original case setting the stage for converting the commerce clause into a blank check for the feds to regulate whatever the hell they wanted. As I recall, that case involved a farmer growing corn on his own property to feed to his own cows. The Court held that, even though this corn never left his property, it nonetheless affected interstate commerce because, if he wasn’t “growing his own” (so to speak), he would have had to buy corn that might have crossed a state line.

  • Abby


    You are right to focus on Wickard, as did the Ninth Circuit at oral argument. The issue is, of course, how to define the class of economic activity and what “effects” it would have on interstate commerce. After Lopez and Morrison it appears that the Supreme Court (“SCOTUS” always strikes me as vulgar) is ready to clip the government’s wings a bit, and not a moment too soon.

    I should think that activity occuring “within the home” — a buzz word from common law (a man’s home is his castle) through Stanley (kiddie porn in the home) up to Lawrence (gay sex in the home) — would get special protection.

    Also, if you define the class of economic activity as California’s cancer and AIDS patients who grow in the home for personal consumption, the effect on the illicit interstate trade would be negligible. (Though of course the gov’t argues for a broader definition).

    Plus, the very point of the wheat price controls at issue in Wickard was control of national commerce. Here it is the prevention of sick people from receiving medicine in the name of “public health.”

    But I do think that the due process argument is ripe for consideration (post-Lawrence), while the commerce argument is premature, and might be too rude a departure from pre-Lopez/Morrison jurisprudence.

    If they go for the 14th am. argument, then the holding will be much broader, an untouchable fundamental right will have been created, and the door is open to general legalization. And if the Court is willing, we can stike down any number of intrusive, meddlesome laws on privacy grounds.

    After all, privacy is “the right to be left alone.” What about hunting laws, gun laws, gambling laws, sex-commerce laws? The posibilities are endless!

    America may become a free country yet.

  • R.C. Dean

    The advantages of having a law student commenting should be obvious to all after Abby’s last post.

    I regard modern Commerce Clause jurisprudence as the root of much federal evil. The notion that the federal government can tell you what you can and cannot grow on your own property for your own use would have been utterly repellent to the Founders. I think the Commerce Clause gives the federal government the power to regulate the means, but not the content, of commerce. The power to regulate the content of commerce is reserved to the States.

    I know the boundaries between the means and content of commerce will not always be perfectly clear, but this distinction is, to coin a phrase, plenty good enough for government work. Put this understanding of the Commerce Clause into practice, and whole swaths of federal regulation disappear.

  • David Mercer

    Delist pot from sched. I, and stick it with wherever the ‘T’ in BATF ended up after the HS reorg. Treat it under the same regime as tobacco, and tax aprropriately when sold as an intoxicant (I realize I’m advocating a tax on a libertarian site, but that sure beats a prohibition).

    A Sched. II-V version of just about everything else can already be had on the Internet, leaving just the big old baddie of cocaine and the non-toxic psychedelics out in the cold.

    Legalize by inches, and play the salami game right back at the Nanny State advocates who’ve whittled at our liberties.

  • Abby

    To my great distress, the big joke of federal drug law is that while marijuana is schedule I (absolutely forbidden), cocaine is schedule II (prescribable by a physian for medical purposes). One can only laugh.

  • Abby


    You are exactly right that the current construction of the commerce clause is a thundering outrage. But I think the substantitive due process expansion of Lawrence is dynamic, while the commerce clause is mired in precedent.

    I can only hope that one day there will be such movement in liberalization of economic rights as well. As our increasing socialism comes home to roost with the baby boomer retirement, perhaps the case can be made to the American people that liberty is supposed to be what our country is all about.

  • Amy from Texas

    Amen, David Mercer. And free Tommy Chong!!!

  • The stretching of the commerce clause is one of the biggest enablers of the socialist state (which is why FDR coerced the court in the first place). It would be a tremendous improvement in our government if it could be greatly reined back.

    There was a case here in AZ regarding gun free zones around schools that invoked states rights, but I guess even the feds were not arguing commerce clause on that one (although what justification they DID argue is a mystery to me).

    And of course, IANAL or I would know the answer to that.

  • Ted Schuerzinger


    Are you referring to the Lopez case? I thought it involved gun-free school zones in Texas.

  • Abby


    I am in complete agreement with you and Robert about the profoundly flawed modern understanding of the commerce clause.

    However, what I propose is a revival of economic liberty under the aegis of the substantive due process clause of the 14th am. This would roll back the clock to, as you have said, the pre-FDR “Lochner era”.

    The Court’s valient defense of contract rights in Lochner (which it based on the 14th am. due process right) brings tears to the eyes: “Statutes limiting the hours in which grown and intelligent men may labor to earn their living are mere meddelsome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in excercise of the police power and upon the subject of the health of the individual who’s rights are [denied]…” (my bar review materials are right in front of me).

    The advantage of this is that it bars such interference by both the state *and* federal gov’t (it was a state law at issue in Lochner). Yet the commerce clause is no protection from an officious state government.

    Of course, today’s law students are propagandized to believe that Lochner is an abomination on par with Dred Scott: it’s spun as a deprivation of liberty, rather than its eloquent defense. We are also told that FDR, that shameless scoundrel, was the greatest president in US history.

    The commerce case you reference is US v. Lopez. Lopez was prosecuted under the federal Gun Free School Zone Act, and I’m afraid the state did indeed argue that gun posession around a school effects interstate commerce. In Lopez and Morrison (where the statute claimed that raping women was a commercial activity), both recent landmark decisions, the Court invalidated the laws as beyond the scope of the commerce power. Rightly so, I believe.

    Here’s the money quote: “The commerce power must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in light of our complex society, would effectively obliterate the distinction between what is national and what is local and create a completely centralized government.”

    Let us all hope and pray that the Court will one day give full effect to both the commerce clause and substantive due process clause. It is our duty as lawyers to demand these liberties which are our birthright.

  • The problem with SCOTUS letting a lower-court ruling stand, I believe, is that the un-reviewed ruling remains effective only within its original circuit. Had SCOTUS reviewed the ruling and affirmed it, or gone even further in rolling back the underpinnings of the Drug War, their decision would have applied throughout the nation — one key motivation for bringing the case to SCOTUS in the first place. So the recent action taken by the court is good news in the Western states, but not necessarily anywhere else. Bummer, man.

  • David Mercer

    Yes, SCOTUS is mildly punting, but the majority of the States in the 9th Curcuit have legalized medical pot, and that’s not true in any other curcuit. So they are in a way respecting the actual Federal nature embodied in the Constitution. Only Maine and Colorado are outside of the 9th circuit out of the 9 states that have passed medical mary jane laws.

    It’s almost like they are daring the govt. to push it with a broader test case. Wonder how that would play out with the current Laurence court?

    If Bush get’s re-elected maybe we’ll see how much John Ashcroft likes to play chicken (not that a Dem would be likely to be any less of a statist).

    Right now I’ll take our victories where they are to be found!

  • Isn’t it too early to celebrate?

    On the other hand, the police is putting teenagers and Parkinson patients to jail for smoking pot here in Czechia, and our former president Havel was very busy pardoning them all the time. The medical use isn’t recognized, of course.

    I think we’ll be able to celebrate only after the insane Drug War is over.

  • David Mercer

    Well yes, but this helps move the ball of public opinion in that direction.