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 again here, 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 and eventually millions more voters, libertarians and liberals, conservatives and seniors, wanting to make it available to people with cancer and AIDS and other ailments.
Since Proposition 215 passed in 1996, the feds haven't been able to figure out how to bust it in the chops. President 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 this week, the Supremes did not sound as if they would sing harmony with their lesser robed 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 judges can't craft an exception to let them do it.
The 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 John Q. Public's pot 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--from discrimination under the Americans With Disabilities Act to federal gun laws--medical marijuana initiatives should be a betting man's dream; local control, will of the people, no?
Even California Atty. Gen. Bill Lockyer, in his brief, enticingly cited the Supreme Court's favorite amendment, the states' right 10th.
(Lockyer took no position on the cannabis clubs, but he did support Proposition 215. His mother and sister died of leukemia, one of the cancers for which medical marijuana is used. Glaucoma is another such disease; I developed glaucoma in my 20s, and when stronger and stronger medicines didn't work, there remained marijuana, which I used before I had to resort to surgery. Believe me, it was no party.)
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."
Patt Morrison's column appears Fridays.
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