MEDICAL MARIJUANA? DON'T HOLD YOUR BREATH

Some of the justices of the U.S. Supreme Court are getting up in
years. Odds are that they know someone, or soon will know someone,
who has some wasting, killing ailment.

Maybe that crossed at least one of the nine minds this week --
perhaps Anthony Kennedy's, or Sandra Day O'Connor's, the one from
California and the other from Arizona, two of nine states with laws
allowing the medical use of marijuana for just such illnesses, laws
the Supreme Court has now begun scrutinizing.

California is lugging the legal load with a case named "U.S. vs.
Oakland Cannabis Buyers' Cooperative," but the other states are
taking careful notes.

Since 1970, when all those hippies were getting stoned and even
making jokes about it, federal law has pilloried marijuana as a drug
of no redeeming social value. Legally, it is worse than cocaine. It
is worse than opium. And here come California voters and Arizona
voters, wanting to make it available to people with cancer and AIDS
and other ailments.

Since California's Proposition 215 passed in 1996, the feds haven't
been able to figure out how to bust it in the chops. President Bill
Clinton threatened to yank the prescription-writing powers of doctors
who recommended marijuana. He wagged that finger of his in their
faces and warned darkly of jail time. The government sent out federal
injunctions to stop "cannabis clubs" from doling out marijuana.

To two federal courts, the "medical necessity" argument sounded like
a reasonable defense. But last week, the Supremes did not sound as if
they would sing harmony with their lesser brethren. They are likely
to rule that this federal law trumps any number of initiatives, and
Californians can't hand out marijuana, even to the sickly, and that
judges can't craft an exception to let them do it.

Acting U.S. Solicitor General Barbara Underwood told the court
ringingly, "There is no accepted medical use of marijuana." As she
spoke, down at Ole Miss, the University of Mississippi, the federal
government was raising up another lush crop of pot. Each month, under
court order, it rolls marijuana joints for six or eight ailing
Americans, who smoke them as a "medical necessity."

Government -- the greatest show on earth. For a Supreme Court that
has the reputation of never encountering a federal law it doesn't
want to turn over to the states, medical marijuana initiatives should
be a betting man's dream.

Clark Kelso is a professor at McGeorge School of Law at the
University of the Pacific. He clerked for Justice Kennedy, and he
thinks the courts will blow the bets and side with federal drug law,
not the states: "The court's most likely response is to direct
proponents (of medical marijuana) to Congress. If Congress wants to
create an exception, that's what they're there for."

California's Legislature did have the guts to pass medical marijuana
laws twice, but Gov. Pete Wilson vetoed them. But a vote for even
considering medical marijuana is more likely to get twisted by the
shorthand of politics into "my opponent the dope fiend," which is why
we have so many initiatives: Voters, not politicians, are left to
make the hard calls. (In May, California researchers expect to begin
spending $3 million in state money to study the medicinal value of
pot.)

Whatever the Supremes do, Kelso muses, the medical marijuana quandary
"is another example of the somewhat arbitrary ad hoc nature" of the
war on drugs, "where we've demonized certain types of substances, and
it's difficult to have a rational debate on certain appropriate and
inappropriate uses, and that's what has happened with medical
marijuana."

For the record, in the 1980s, after one Supreme Court nominee washed
out because he had smoked marijuana, the next nominee, future Justice
Kennedy, declared to the "have you ever smoked" question, "No,
firmly, no."