Fear and Hope at the Supreme Court

At the end of November, I traveled to Washington, D.C., to attend the Supreme Court hearing in which the legal fate of WAMM, the 8-year-old Santa Cruz, Calif. medical marijuana cooperative, will be decided. 

The case argued was Raich v. Ashcroft, a medical-marijuana case out of Oakland. Like WAMM, Angel Raich had successfully argued in federal court in San Francisco that she was entitled to an injunction against the attorney general of the United States, John Ashcroft, and his Drug Enforcement Agency. The injunction in both cases prohibited the federal government from interfering with the patient's cultivation, possession and use of medical marijuana. 

While WAMM's case was the first brought at the trial-court level, the Raich case was the first ruled on and thus was the case that went to the Supreme Court on appeal, leaving WAMM waiting for the court's ruling. If Raich wins, WAMM wins. And if Raich loses?

Having been a lawyer for WAMM for many years, I knew how important the Supreme Court argument on Nov. 29 was going to be for WAMM's founders, Valerie and Michael Corral, and for the nearly 200 patients in the cooperative. 

A little background:

On Sept. 5, 2002, I was visiting a client in the county jail when the sergeant in charge came, found me and explained that a raid by federal agents was occurring at the WAMM garden and, "I had better get out there because the WAMM members were blockading the federal agents onto the land and the agents were calling the sheriff's office for backup."

WAMM had been operating in the open under California's Compassionate Use Act of 1996 and had established itself with local government and law enforcement as a legitimate medical-marijuana organization. On the day of the DEA raid, the Santa Cruz Sheriff's Office hadn't been told by the DEA that the raid was going to occur, so they were not particularly happy at the prospect of "rescuing" the heavily armed agents from the outraged patients who were refusing to move out of the agents' way as they tried to leave the garden with a year's supply of medicine. 

The standoff was concluded peacefully only after Val, who with Michael was arrested and in DEA custody, used a DEA cell phone and spoke to members and asked them to move. 

Later that day, Val and Michael were released from custody and have since lived with the knowledge they could face prosecution for the next five (or less) years. Conviction for these two could lead to a decades-long prison term under the federal sentencing guidelines. 

For the past 10 months since its success in federal court, WAMM has been enjoying its unique position as the only legal medical-marijuana cooperative and garden in the country.  The injunction has allowed the sick and dying WAMM members to grow, process and use medical marijuana without fear of interference.  The success has been bittersweet as 22 members have died since the raid and everyone has known that the day would come when this very conservative Supreme Court would have the final say. And yet, maybe we can win, we told ourselves. 

The legal argument made in the Raich and WAMM cases was that "states rights" barred the application of the federal Controlled Substances Act to medical-marijuana patients who were using this medicine at the recommendation of their doctors under California law. The federal government argued that it can create and enforce certain laws because the conduct they seek to regulate has an impact on other states and thus permits federal regulation under the Interstate Commerce clause power Congress has under the Constitution. 

Ironically, our hope is that arch-conservative justices like Chief Justice Rehnquist and Clarence Thomas might support California and the other nine states that have medical-marijuana laws under this states' rights theory. 

Decisions by the Supreme Court since the WAMM raid invalidating federal laws dealing with gun possession near schools and with violence against women had given us more reason to hope.  The Supreme Court has also left intact a lower federal court's decision that stopped federal investigations into doctors who have been recommending marijuana to their patients as violating the doctors' and patients' First Amendment rights. 

Given the importance of the ruling, it was decided I should attend the Raich argument. I was admitted to the Supreme Court Bar and headed to Washington. 

The morning the Raich case was to be argued dawned cold and nearly clear. The court was to hear the case at 10am but, even with a reserved seat, I wanted to get to the court early to try and get the best seat possible as a large number of attorney spectators were expected.  I walked 30 minutes from my hotel to the Supreme Court building and watched the light gradually illuminate our nation's centers of power. Arriving at 7am, I found that I was the second attorney in line, but a group of at least 50 citizen spectators had been in their line since as early as 3am. 

When the justices took the bench, the courtroom was packed and felt charged. Justice Stevens presided and noted that the very ill Chief Justice Rehnquist would vote after reading all briefs and transcripts from the oral argument. (Justice Rehnquist is the third justice to suffer cancer.  Might that help, many of us have wondered?)

Each side was given 30 minutes to present its case before the court. The government's attorney began his argument and was immediately interrupted, first by Justice Stevens and then by Justice O'Connor, who questioned him skeptically concerning his contention that the medical-marijuana patient's conduct in this case constituted significant economic activity that would impact other states, thus allowing federal intervention.  When Justice Ginsburg seemed skeptical, too, I began to think a victory was possible. 

But then it was Boston University Law Professor Randy Barnett's turn to argue for Raich, and the beating began. Justices Breyer, Kennedy, Souter and Scalia took turns attacking, and the day suddenly seemed darker and heavier to me. The final insult was Justice Scalia's snide reference to WAMM as "that 200-person commune" out there in California – invoking the stereotypical picture of '60s-type hippies laying around "smoking dope."

There is some reason to cling to hope here. If Justices Stevens, O'Connor and Ginsburg were revealing their inclinations and if the Chief Justice agrees with the states' rights claim and Justice Thomas (who never speaks at these hearings), who is also a states' rights champion, agree, then Raich, WAMM and the many thousands of people who are benefiting from medical marijuana will win. 

The Raich case will be decided by the court sometime in the spring or early summer of next year. Should it be lost, it is important to remember that the decision will not overturn California's Compassionate Use Act. 

Individual patients will not be at risk from California authorities and will most likely never need to fear arrest by federal authorities who, one hopes, are more preoccupied with hunting down terrorists. Nor will doctors need to worry about being investigated. But people with the best of motivations and intentions, like Val and Mike Corral, will indeed be at risk – a scenario too awful to contemplate.

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