Washington, DC, Apr. 22 (UPI) -- A Supreme Court decision on medical marijuana is more than ripe for delivery. If the case hangs around any longer without a ruling, like ripe Camembert it will begin to smell.
Sometimes, the only thing predictable about a Supreme Court resolution is its unpredictability.
But still, we ink-stained wretches in the Supreme Court pressroom continue to try to predict which way the wind will blow.
If you ever get the chance to talk to a justice, you'll be impressed by the focus that he or she brings to the law. That holds true whether you're chatting with Justice Clarence Thomas, the soul of human warmth, or with the rather icy Justice Ruth Bader Ginsburg.
As a rule, the Supreme Court press corps is also a brainy bunch, and individuals within it often possess a keen sense of intuition, built up over decades of reporting from the court, as well as their truly outstanding analytical skills.
Hold on a second. Let's exclude me from that "brainy" evaluation.
Not to brag, but I used to have a mind like a steel trap. Now it's more like a swamp. There's lots of stuff still lurking down in the depths, but every once in a while something crawls out and gets away.
Still, I know what I know.
When the high court holds on to a case, without handing down a decision, for five months after hearing argument, something is up.
Let's recap the case.
Ten states allow the medical use of marijuana to some degree. They include California, Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington. Maryland has reduced the penalty for the medical use of marijuana to a small fine.
The case before the Supreme Court involves Angel McClary Raich and Diane Monson, Californians who use marijuana to relieve the symptoms of illness, and Raich's two unnamed caregivers who grow marijuana for her. Three of the four live in Oakland.
Raich claims to have a variety of illnesses. Monson grew medical marijuana in her "Prop 215 garden."
California voters exempted the use of medical marijuana from its criminal laws in a 1996 referendum, Proposition 215.
In October 2002 the four state residents filed suit in federal court against the Justice Department after the Drug Enforcement Administration swooped down on Monson and took her six marijuana plants.
A federal judge refused to issue an injunction against the Justice Department for continuing to prosecute those using medical marijuana. However, a federal appeals court panel issued a temporary order restraining the department, saying the four were likely to win their case on the merits.
The appeals court said Congress, which enacted the Controlled Substances Act under the constitutional clause authorizing it to regulate interstate commerce, exceeded its power under the clause when it included medical marijuana.
The Justice Department then asked the Supreme Court to review the case.
At the time of argument in November, a majority of the Supreme Court seemed poised to side with the Justice Department, which contends that the federal law pre-empts the state laws.
That wasn't just my view. Everyone I talked to who had watched the argument that day pretty much came away with the same impression.
Much of the argument revolved around whether the consumption of homegrown marijuana for medical purposes is an economic activity covered by the commerce clause and whether that consumption of homegrown product affects the illegal interstate commerce of marijuana.
The Justice Department said 100,000 people in California are taking advantage of the medical use of marijuana -- out of a 34-million-person population -- and all that use of the drug has an effect on the illegal interstate commerce of marijuana, a $10.5 billion-a-year industry.
Boston University Professor Randy Barnett, a fellow at the Washington-based libertarian Cato Institute, spoke for the challengers. He had to handle hostile questions from both the conservatives and the liberals on the bench.
As reporters compared notes afterward, the post mortem was unanimous. This case was going to be a slam dunk for the government.
So why haven't we heard already?
A quick turnaround between argument and opinion in the modern Supreme Court usually takes about a month. A turnaround of three or four months is more about average. Five or six months is really pushing it.
Which begs the question, what's holding up Docket No. 03-1454, Gonzales vs. Raich et al?
Perhaps the justices are having trouble settling on a majority opinion. Perhaps they disagree on the way they want to slap down the state laws. Or perhaps they have to scrape together a plurality in order to find a way to rule for the Justice Department. One thing they certainly will not do is rule against the government.
To do so -- to rule that marijuana can be legal in some circumstances, no matter how restricted, even if it is confined to cancer patients on their death beds in some uncharacteristic judicial outburst of compassion -- would expose this Supreme Court to more heat than it is usually willing to endure.
But maybe I'm wrong. We could find out as early as next week or as late as the last week in June, when the justices scatter like schoolchildren for their summer recess.
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(Mike Kirkland is UPI's senior legal affairs correspondent. He has covered the Supreme Court and other parts of the legal community since 1993.)
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(Please send comments to nationaldesk@upi.com.)
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No Doubt something is up....
Democracy scares the shit out of them imo.
llIndigoll
And tell me again how we check the Supreme Court when it takes too long to rule on something that is so important to us?
Randy High
Hey Indigo
Have you followed this?
It's a really about the future of America.. What with the wickard ruling being the base for the Neo-Federalism. In short they ruled that the average person is to dumb to have a choice so the Federal government has the right to tell them what to do. Where is that Freedom we were raised on? Guess since they now make war without permission they only need us to shut up and pay for it all. They MUST be trying to draft the craft by taking soooo long. Lets face facts, so to speak, States rights are the check against Federal power. If they strike down California's laws then it's over for freedom imo. If States rights are over ridden then the structure of the USA is over... Neo-Facism is defacto imo at that point.
Bet they wount do a thing about the electoral college. That works in Fereralism's favor.
So what say you friend?
RacerX
Interesting points, Randy.... I see this issue as similar to the "jim crow" laws that were struck down by the Court a few decades earlier... The problem (as I see it) is that this time the govt has billions of $$$ riding on this decision (The legislative & executive branches of our govt. can't afford to see MJ decrim'd or legalized because of the lost law enforcement dollars). Besides, with all the backlash from T. Delay & the other religous nuts (calling for judges to be punished when they don't rule in their favor), I don't think they want to issue another ruling that harms the hand currently feeding them. You may be saying to yourself-"isn't the Judiciary Branch of our govt. separate from other Branches of govt?" Well, yes....sort of. But looking at the nominees currently being held up for confirmation (not to mention all the nominees held up during the 8 years of the Clinton Admin), it is clear to see that our Justice system is no longer blind- they're chosen by how close they mirror the philosophies of their stated political party. They Justices are either looking for a way to strike it down (without giving the impression of playing partisan politics) or they're waiting for that crazy ass (thief,liar,cheat) Tom Delay to get kicked out so they don't have to endure political threats again.... I'm hoping for the second choice.
llIndigoll
^^Agreed^^ It's all about money and power. I don't think that I can summarize how I feel about this issue without addressing the problems inherent in our judicial system.
Basically I think that the main reason MJ is still illegal in this country is because pot smokers are too easy-going and refuse to organize and overthrow the 2-party system. All Americans are too far removed from the revolutionary ancestors, and we've forgotten how to use our power as a whole.
I don't see anything changing with anti-MJ legislation until the 2-party system is done away with, and I doubt I'll see it in my lifetime. Until then I'll just keep filling out paperwork and growing medical MJ in the states that allow it. If/when states lose the power to dictate who can grow MMJ I will probably move out of the country.
Randy High
I understand that the Federal Gov can rule against medical but they cannot over ride the State law.
So we would be back to square one. Growing and hoping the feds don't get involved. MPP's Rob Kampia pointed that out.
It really more than Medical Marijuana it's about the future of Federalism under economic decline imo.
I don't know but, I hope we find victory at hand soon. I just don't see how they can hope to save the USA by distroying the USA...
llIndigoll
Word.
earth girl
I'm thinking the necessary changes in official attitude could be nearer, due to the huge increases of usage over the last few generations, and the resultant growing tolerance in the sub-conscience of the general public. Indigo is too right! We must get out there and gather our laid-back, cool, peaceloving, antiestablishmentarianistic bros. To get our stoned asses off the couch, get away from the web games and sites, and shed our paranoia long enough to sign petitions, write to our government offiacials stating our views, and/or donate moola and/or time to NORML, etc. What kind of catalyst could be used to mobilize so much distrust and inertia? We don't have to be Rosenthal or Emery, but we could be out there actively backing them up, ehh? earth girl off to put some money where her wishes ride!
