The Supremes and medical marijuana

One of the things that struck me in Floyd Abrams’ First Amendment book (see immediately preceding post) was his observations regarding interesting juxtapositions on the US Supreme Court. Particularly, he pointed out that in the challenge to the McCain-Feingold campaign finance reform law, justices who would be considered more “pro” First Amendment tended to support the restrictions whereas members considered to be in the Court’s conservative wing opposed it. We’re seeing something a bit similar in today’s decision that federal law trumps a California law allowing seriously ill individuals access to marijuana for medicinal purposes.

Justice John Paul Stevens, who wrote the majority opinion in the 6-3 decision, would generally be considered in the Court’s “liberal” bloc. Although acknowledging “the troubling facts of this case,” the majority decision is one that says, at bottom, the power of Congress to regulate interstate commerce overrides California’s “Compassionate Use Act.” The majority said that allowing patients and their caregivers to cultivate marijuana “can only increase the supply of marijuana in the California market [and] the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious.”

While the dissent was written by middle-of-the-roader Justice Sandra Day O’Connor, she was joined by Chief Justice William Rehnquist and Justice Clarence Thomas, two of the Court’s more conservative members. Taking the view that the federal government is encroaching on state power, they note that California made its own decision on “the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering” but the majority opinion “extinguishes that experiment” without proof that the California law impacts interstate commerce. Moreover, Thomas wrote a separate dissent which, while also premised on the federal goverment usurping state power, notes the ruling precludes states “from devising drug policies that they have concluded provide much-needed respite to the seriously ill.”

Thus, two of the conservatives’ heroes on the Court advance arguments one would most expect from liberals.

There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market[.]

Dissenting opinion of Justice Sandra Day O’Connor in Gonzales v. Raich

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