KEEP OFF THE GRASS

The High Court Is Addled by Medical Marijuana

Discussions about the likelihood of one or more Supreme Court justices
being appointed during the Bush administration often assume that the
nominees will turn out to be cartoon-character stereotypes -- their
voting patterns on the court preordained by their ideological
inclinations. As history and recent rulings have shown, that's not
always true.

With the recent decision on interstate wine shipments, and last week's
ruling on medical marijuana use, majorities have been formed with some
strange bedfellows, and conservatives and liberals alike have found
themselves torn between their basic beliefs.

In its medical marijuana case, decided 6-3, the court overturned a
decision by a federal appeals court that sided with two California
women who use marijuana to blunt the pain of medical problems. Having
passed a referendum in 1996, California is one of 11 states that allow
the medical use of marijuana, despite what federal law says.

But does the federal government retain the power to regulate marijuana
use, even when the marijuana was not imported from across state lines?
Yes, said the majority, relying heavily on a 1942 precedent involving
the growing of wheat for home consumption.

In dealing their blow not just to the democratically forged consensus
of various states but to those suffering individuals helped by
marijuana, some of the justices had a bit of a problem. The recent
trend of the court has been to scale back the power of the federal
government under the Constitution's Commerce Clause.

Indeed, the justices who have led the charge have been dubbed the
"federalism five." Yet two of their number -- the ultra-conservative
Antonin Scalia and his more moderate conservative brother Anthony
Kennedy -- joined liberal justices to form the majority.

The three other conservative believers in federalism lined up in the
minority -- Chief Justice William Rehnquist, Justice Sandra Day
O'Connor and Justice Clarence Thomas, who was the most arch in his
dissent: "If Congress can regulate this [medical marijuana use] under
the Commerce Clause, then it can regulate virtually anything -- and
the federal government is no longer one of limited and enumerated powers."

Why did the other conservative justices rule the way they did? The
worldly, cynical answer is that the law is not neat and one doesn't
have to be a liberal to be "an activist judge" to reach a favored
conclusion. Count intellectual consistency as another casualty in the
war on drugs.

The medical community is divided about marijuana for medical purposes
but many sufferers swear by it -- and in states that have approved
such a use the federal government need not be involved. But the
inability of the federal government to make sensible distinctions is
its own sort of reefer madness.

That some justices had to perform legal gymnastics to dismount
gracefully from their previous positions may not matter in the end.
Most of the prosecutions in marijuana cases are brought by states and
they may not act.

Ideally, Congress would pass a law recognizing that anti-drug laws
don't have to mean trouble to ordinary Americans who are very sick.
Unfortunately, that won't happen anytime soon. Not entirely by
coincidence, the court's opinion mirrored the temper of the political
times.