MEDICAL MARIJUANA AND THE HIGH COURT

Even to somebody self-consciously aware that the grandeur is in part
designed to impart a sense not just of solemnity but of near-sacrament
to the activities of nine ordinary human beings, an oral argument before
the U.S. Supreme Court is impressive. Before Wednesday I had not
observed one as a member of the press on an issue of concern to me,
though I had attended a couple just to be able to say I had done it when
I lived here 20 years ago.

The drill is somewhere between a solemn mass at the Vatican and grammar
school. The fiercely independent, members of the media are lined up
according to assigned seats, told to leave behind everything but
notebooks and pens and made to wait quietly in the unspeakably
high-ceilinged marble hall. Then we file in (no noise or whispering,
please) to sit in old-fashioned leather-seated chairs partially behind
curtains to the left of the congregation - er, public - and to the right
of the justices.

The justices are seated behind a huge and impressive bench, lifted so
high that they virtually loom like titans over the assembled lawyers and
observing public. If you listened to the audiotapes from the
Florida-voting case, you know that the justices have little concern for
allowing the contending attorneys to make a coherent statement before
asking questions. The questions from the justices last Wednesday began
before a few dozen words had come from the mouth of the attorney making
the opening argument. The questioning can be vigorous bordering on
rudeness, and once in a while offers an amusing contrast to the
solemnity of the entire proceeding.

THE CASE AT ISSUE

I was there to see how the court dealt with, for the first time in its
history, the subject of medical marijuana. The issue came to the court
because the federal government got a civil injunction in a federal
district court in 1998 to close down the Oakland Cannabis Buyers'
Cooperative and other northern California medical cannabis distribution
clubs. The Oakland cooperative, which had the backing of the city
government, kept its doors open and didn't dispense cannabis while it
appealed. The Ninth Circuit federal appellate court told the district
judge he had to consider "medical necessity" as a "legally cognizable
defense" for certain patients, so he crafted an amended injunction that
allowed the OCBC to dispense marijuana to patients who meet a stiff test
involving imminent harm that would cover 14 to 20 of the cooperative's
4,500 members. The government asked the Supreme Court to stay that
injunction while it appealed and to take the case immediately rather
than wait for a longer appeals process. The Supreme Court eventually
agreed, which led to the oral arguments March 28.

A NARROW SCOPE

Even though I know that the Supreme Court generally prefers to deal with
issues narrowly rather than leap to handle large-scale constitutional
issues, I was not prepared for the narrow scope of the issues the
justices chose to focus on. Perhaps 20 minutes of the hour (the timing
is enforced decorously and civilly but firmly) was taken up with the
question of whether it would have been better for the government to
bring criminal charges rather than a civil injunction against the
Oakland cooperative. A good deal of time was spent on the precise
wording of the Controlled Substances Act of 1970, the federal law that
makes it a crime to place marijuana on Schedule I, the most restrictive,
of the system the act established.

Several justices, notably Sandra Day O'Connor, wondered whether allowing
the cooperative to assert a medical necessity defense on behalf of its
patients would amount to a sweeping, "blanket" exemption for the
organization itself.

Much of the nit-picking had a point. Justice Antonin Scalia, who seemed
to want to support and even bolster the government's case, expressed
concern that the government might have brought a civil case to avoid a
jury trial in a criminal case that, given the higher burden of proof and
the climate of opinion in Oakland, the government might well have lost.
Justice Souter said in so many words that he thought the government had
done so. That fact could give the high court an opportunity to elide the
issue, saying it didn't have enough trial background, including a
determination by a jury, to be "ripe" for Supreme Court adjudication.

OTHER SURPRISES

There were other surprises. Robert Raich, who wrote much of the Oakland
brief (although Santa Clara University law professor and former "dream
team" member Gerald Uelmen argued it), told me his team had pretty much
written off Justice Ruth Bader Ginsburg. She had been one of the judges
in the First Circuit, which in 1992 finally affirmed the Drug
Enforcement Administration's decision, against the advice of its chief
administrative law judge, to refuse to "reschedule" marijuana to a less
restrictive schedule that would allow doctors to prescribe it. But
Justice Ginsburg, along with Justice John Paul Stevens, took the lead
Wednesday in challenging the government's attorney, Justice Department
lawyer Barbara Underwood.

Justice Ginsburg pushed the government into asserting and repeating its
most unreasonable and unsustainable argument - that marijuana is an
unsafe, dangerous drug that has no known medical uses and cannot be used
safely under medical supervision - and that under the law there was no
possibility of a medical necessity defense. Justice Scalia tried to save
the government by suggesting it wasn't saying there was no possible use
but only a narrow range of uses whose efficacy didn't justify
authorizing its distribution, but Ms. Underwood simply repeated the
extreme position.

THE SCIENTIFIC EVIDENCE

Anyone who has even dipped into the scientific evidence cannot help but
know that at least for some people in some circumstances cannabis is the
best available medicine. DEA administrative law judge Francis Young's
decision and recommendation in 1988 - that it would be capricious and
arbitrary and cause untold suffering to numerous patients to keep
marijuana on Schedule I, where patients and doctors are denied legal
access - is well-supported by both scientific and legal evidence and
reasoning. And a 1999 Institute of Medicine report (ordered by then-drug
czar Gen. Barry McCaffrey in the wake of the passage of Prop. 215 in
California) acknowledged that cannabis has numerous medical applications
and other possible uses that virtually cry out for further scientific
exploration.

In the real world of science and medicine (as well as the experience of
thousands of patients and doctors), then, cannabis undoubtedly has
medical and therapeutic applications. To deny it is to ignore a
considerable body of reliable and undisputed scientific evidence.

Yet Underwood was able to assert that it was the position of the U.S.
government that cannabis has no known medical uses, that it involves a
severe danger of abuse and that it cannot be used safely under medical
supervision. Why? Because those are the criteria for placing a substance
on Schedule I under then Controlled Substances Act, and Congress placed
marijuana on Schedule I when it passed the act (never mind that it was
seen as a temporary holding action at the time pending more scientific
inquiry) and neither Congress nor the DEA had taken action to remove it
from Schedule I. Therefore it fit the criteria. Ignore those pesky
scientists and doctors who say otherwise. Congress, a body notably
devoid of much scientific expertise, had decided. That settles the
matter.

Several of the justices in essence ignored the absurdity and called
marijuana a "medicine." But none would say that it is a cruel absurdity
for the government to keep marijuana on Schedule I when it clearly
doesn't meet the criteria established by law for placement on that
schedule.

HOW WILL THE COURT RULE?

How will the court rule? All the experts say it is foolish to infer how
a justice will vote by the character or tone of his or her questioning
during oral arguments. But if I were to guess, I would say that the
decision, which will probably be handed down in June, will be narrow in
scope. The Oakland brief invited the court to void sections of the
Controlled Substances Act as it applies to medicinal use of cannabis,
but I would be astounded if it did so.

If the court rules, as I suspect, that a medical necessity defense is
available to individual patients but not to an organization like the
Oakland Cannabis Buyers' Cooperative, it will not affect the legal
status of Prop. 215. Justice Ginsburg, through her questioning, made the
government clarify the fact that the California law was not in play
here, that this case is about the interpretation of federal law only.
Since 99 percent of marijuana arrests are made by state and local rather
than federal authorities, that means California can continue to refine
the system mandated by voters and patients will be at some risk from
federal authorities.

If that's the outcome, maybe it won't be so bad. Despite the sentiment I
heard voiced by some advocates that it might be nice for the judicial
system to legitimize medical marijuana to protect the political branches
from having to confront a controversial and emotion-laden issue, these
kinds of questions really are better decided through the
rough-and-tumble of the political process than by judicial decree.