JUSTICES SIGNAL TRUMPING OF MEDICAL POT LAW IN CALIF.

West Coast-style compassionate liberalism ran into the strict conservatism
of the Supreme Court on Wednesday as the justices took up California's
medical marijuana law for the first time.

The court's conservative justices said they saw no legal basis for giving
the drug to people who are seriously ill.

In their comments and questions during the oral argument, they gave every
indication they will rule that federal law strictly forbids the
distribution of marijuana and that neither California's voters nor other
judges are free to make exceptions for those who suffer pain and nausea.

The medical marijuana laws have proved to be popular with the voters but
not with federal officials. In 1996, 56% of California voters approved the
Compassionate Use Act. Since then, voters in seven other states--most of
them in the West--have adopted similar laws.

But federal officials insist these state marijuana laws are essentially
void and meaningless.

"There is no accepted medical use of marijuana," acting U.S. Solicitor
General Barbara Underwood told the justices Wednesday. Regardless of the
state laws, there is "no room to distribute marijuana without the approval
of the U.S. attorney general," she added.

Two years ago, the U.S. 9th Circuit Court of Appeals gave new hope to
advocates of medical marijuana. The Circuit Court refused to close down a
cannabis club in Oakland and ruled that marijuana may be given to patients
for whom it is a "medical necessity."

But U.S. attorneys appealed, setting the stage for Wednesday's argument in
the high court.

Justice Sandra Day O'Connor, siding with the government, sharply criticized
the West Coast judges.

"It seems to me the 9th Circuit erred at the point it created this blanket
exception to the Controlled Substances Act," she said, referring to the
federal drug law.

Narrow Exception Argument Rebuffed:

Santa Clara University law professor Gerald Uelman, representing the
cannabis club, disagreed with her characterization.

"This is a very narrow exception for a very limited number of people,"
Uelman said. "They are gravely ill, in pain and unable to eat."

But Justice Anthony M. Kennedy interjected. "It doesn't sound like a very
narrow exception. This is a huge rewriting of the statute."

Chief Justice William H. Rehnquist said federal authorities maintain there
is "no known medical use" for marijuana. And Congress has "ruled out the
defense you are advocating."

"Is there any case where this court has used this 'medical necessity'
defense?" the chief justice asked Uelman.

When the law professor began an explanation, Rehnquist demanded a yes-or-no
answer.

"No," Uelman replied. The high court has not permitted an exception to the
zero-tolerance drug laws, and federal authorities reject the notion as
well, he acknowledged.

Justice Antonin Scalia also was relentless in criticizing the marijuana
exception. Justice Clarence Thomas, who sat silently as usual, consistently
votes with the conservatives to form a majority.

While it is likely the high court will reject the "medical necessity"
exception to the drug laws, it is not clear what that will mean. The
justices could rule narrowly and say only the cannabis clubs have no legal
license to distribute marijuana for medical use. Or they could speak
broadly and say federal drug laws void the states' medical-marijuana laws.

Even if the court broadly rejects the medical marijuana exception, it is
not clear federal authorities can enforce their no-marijuana policy.

Justice David H. Souter said jurors in California are not likely to convict
those who give marijuana to people who are very sick.

"Isn't the real concern here the popularity of these laws?" he asked the
government's lawyer. "It will be very difficult to get a conviction from a
jury."

Underwood acknowledged that the government had not moved to bring criminal
prosecutions in such cases. As an alternative, federal authorities went to
court seeking a judge's order that made it illegal for marijuana clubs to
operate. Violators of these orders can be fined or jailed, she noted.

The judge who issued the order in the Oakland case was U.S. District Judge
Charles Breyer, whose brother sits on the Supreme Court. For that reason,
Justice Stephen G. Breyer was recused from Wednesday's argument in the case
known as U.S. vs. Oakland Cannabis Buyers' Cooperative, 00-151.

The tenor of the argument came as no surprise. In August, the court issued
an emergency order to block a judge's ruling that allowed for legal
distribution of marijuana to patients in Oakland who have "a serious
medical condition" and "will suffer imminent harm" if they are deprived of
the drug.

The government argued that its drug-fighting efforts would suffer imminent
harm if the legal distribution of marijuana were permitted.

It takes the votes of five justices to issue such an emergency order. And
such orders usually foreshadow the outcome when the full case comes before
the court.

In the presidential election dispute, for example, the same five
justices--Rehnquist, O'Connor, Scalia, Kennedy and Thomas--issued an
emergency order to stop the vote recounts in Florida. Three days later,
they ruled the vote count unconstitutional by the same 5-4 margin.

If there was a surprise in Wednesday's argument, it was the absence of
discussion of federalism and states' rights.

Uelman barely mentioned the California medical marijuana law and instead
focused on the 9th Circuit's view that federal drug laws allow an exception
for "medical necessity." When asked directly, he said he believed this
exception applied in all 50 states.

Lockyer Asks Court to Defer to Voters:

However, California Atty. Gen. Bill Lockyer filed a friend-of-the court
brief that said the justices should defer to the wishes of the state's voters.

"The states have a sovereign interest in matters pertaining to the health
and welfare of their citizens," he said. And on the issue of giving
marijuana to seriously ill people, "California's voters have spoken," he said.

Meanwhile, the justices heard arguments in a copyright dispute that pits
freelance writers against some major newspapers and their computer databases.

Typically, a paper buys a freelance article that is printed once and
possibly included in compilations of news articles. But what if it is sold
to a computer database, which in turns sells it again? Is the original
author due more money?

That is the question in the case of New York Times vs. Tasini, 00-201.
Since 1995, the paper has clarified its contracts to resolve this issue,
but it is being sued by freelancers who want to be paid more for earlier works.

A ruling is likely by June in the case.