what will Supremes do re medical marijuana?

[DavidEBernstein at aol.com]

I think Barnett's brief did a fantastic job of distinguishing Wickard, though 
Scalia either wasn't persuaded or didn't read the brief closely. In short, as 
I recall, Wickard has been portrayed through the years as a case involving 
someone growing wheat on his own land for family consumption, but it actually 
involved a rather large commercial farm that sold much of the wheat, and the 
family consumption involved included using the wheat as feed for many farm 
animals. In other words, if Wickard had come out the other way, it might very well 
have truly undermined the federal government's ability to control wheat 
production and prices, while preventing sick individuals from getting marijuana via a 
doctor's prescription would be unlikely to undermine marijuana prohibition.

Also, Greenhouse's piece seems tendentious to me.  She relies on skeptical 
questions from Souter, Breyer,  Kennedy, and Scalia to suggest that the case is 
hopeless.  But no one expected Souter or Breyer to vote to limit federal 
power, and Scalia said he "used to laugh at Wickard," so maybe he'll vote to 
overturn Wickard.  O'Connor seemed sympathetic to Barnett, and Thomas is likely to 
be.  Kennedy is more troubling, but who knows what Rehnquist will do, and there 
is always the Stevens (and maybe even Souter and Kennedy) wildcard on the 
substantive due process issue.  Odds are a bit long, but not as bad as Greenhouse 
made out.

In a message dated 11/30/2004 11:26:10 AM Eastern Standard Time, 
lweinberg at mail.law.utexas.edu writes:
I haven't been following the medical marijuana case, but from Linda 
Greenhouse in this morning's times I glean that the women using and 
possessing medical marijuana (gift and home grown) were arguing Lopez, and 
the U.S. was arguing
Wickard v. Filburn.  But these arguments sort of slide past each other and 
don't decide much.  To the extent they collide, my gut reaction is to save 
the Wheat Case and dump Lopez, but on the facts my gut reaction is to let 
the plaintiffs have their medical marijuana.  Who wants to strip Congress 
of any more power?  But who wants these women to die with unnecessary 
pain?  And if there is simply an exception to preemption for a case like 
this, why wouldn't that overrule Lopez?  What will the Court do?  And dare 
they go with another let-stand after the same-sex marriage let-stand?  (In 
the marijuana case below, the patients got a federal injunction against 
enforcement of federal law and the 9th Circuit affirmed.)
Louise
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