what will Supremes do re medical marijuana?

Sanford Levinson SLevinson at law.utexas.edu
Tue Nov 30 08:50:55 PST 2004

I gather that Chief Justice Rehnquist is undergoing chemotherapy
(though, of course, I might be wrong).  I wonder how awful he is finding
the process and whether he might not be more sympathetic to the use of
marijuana in such circumstances than he (presumably) was prior to his
illness.  Ditto with Ginsburg and O'Connor, both of whom have had cancer
(though I don't recall reading that they received chemotherapy).  Of
course, I presume that some would say that such personal details of
their own lives should be irrelevant to determining the reach of
national power, though I can't help but believe that O'Connor's dreadful
experience following her graduation from Stanford Law School helps to
explain her otherwise inexplicable vote in Hibbs. 


From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
DavidEBernstein at aol.com
Sent: Tuesday, November 30, 2004 10:39 AM
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Subject: Re: what will Supremes do re medical marijuana?

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
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
	Greenhouse in this morning's times I glean that the women using
	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
	of any more power?  But who wants these women to die with
	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
	enforcement of federal law and the 9th Circuit affirmed.)

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