Justices Signal Trumping of Medical Pot Law in Calif.

WASHINGTON —  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.