Source: Los Angeles Times (CA)
Author: David G. Savage, Times Staff Writer
Published: November 28, 2004
Copyright: 2004 Los Angeles Times
Contact: [email protected]
Washington -- The U.S. Supreme Court can ignore the usual
liberal-versus-conservative divide in the next two weeks when it takes
up California-centric cases on medical marijuana and the direct shipping
of wine to consumers. Instead, the justices will be forced to decide
between competing versions of conservatism.
The social conservatives seek more government enforcement in areas such
as abortion, pornography, drugs, immigration and homosexuality. The
small-government, free-market conservatives seek fewer restrictions on
It's a clash likely to echo in Washington in the years ahead, as
Republican control of all three branches of the government could
potentially sideline Democrats and expose philosophical rifts within the
GOP. The Supreme Court, where seven of nine justices are Republican
appointees, will face especially stark choices on a range of issues.
In a case to be taken up this week, outgoing Atty. Gen. John Ashcroft is
challenging the California law that permits seriously ill people to
obtain marijuana to relieve their pain if they have the recommendation
of a doctor.
Ashcroft argues for strong federal enforcement of drug laws. And he is
joined by a group of drug warriors and half a dozen socially
conservative Republicans in Congress who, in briefs to the court, argue
for a zero-tolerance policy on marijuana.
But leading conservative academics, including veterans of the Reagan
administration, have joined the case on the side of the California
medical marijuana users. They argue for limits on federal power and for
protection of states' rights — including the right to enact the
"This is a real test of federalism," says Pepperdine University law
professor Douglas W. Kmiec, a former Reagan administration lawyer, who
filed a brief on behalf of the libertarian Cato Institute supporting
medical marijuana users.
The wine-shipping case features a similar dispute between conservatives
who champion free trade and those who support strict state controls on
alcohol, including a national group of evangelical Christians.
Wine and marijuana are not the only upcoming cases in which these two
Earlier this month, Ashcroft asked the Supreme Court to take up a
challenge to Oregon's law that permits terminally ill people to obtain
lethal medication from a doctor. The Bush administration says federal
authorities should have the power to punish doctors who write such
However, Oregon officials say the regulation of medicine and healthcare
is a matter for the states and their voters. Twice, Oregon's voters have
approved the nation's only right-to-die law.
These cases pose a test for the high court's conservative justices.
"They have to decide whether they want to be Mr. Law-and-Order or Mr.
Federalism," says Robert A. Levy, a constitutional scholar at the Cato
In the last decade, the high court's conservative justices, led by Chief
Justice William H. Rehnquist, served notice that they wanted to restore
limits on federal power.
They did so by focusing on the Constitution's main source of federal
power, the provision that says Congress "may regulate commerce among the
several states." In the 20th century, this became the basis for federal
laws that set minimum wages, prohibited discrimination in the workplace
and protected the environment.
But Rehnquist said this power had limits too. In 1995, he spoke for a
5-4 majority that struck down the federal Gun Free School Zones Act on
the grounds that the mere possession of a gun did not involve interstate
commerce. Five years later, the same 5-4 majority voided part of the
Violence Against Women Act that allowed victims of sexual assaults to
sue their attackers in federal court. A sexual assault is a crime, but
it is not interstate commerce, Rehnquist said.
Those rulings were applauded by conservatives who said they helped to
restore the Constitution's limits on federal authority. Many liberals
faulted the rulings as examples of unwarranted conservative judicial
The four liberal justices — John Paul Stevens, David H. Souter, Ruth
Bader Ginsburg and Stephen G. Breyer — dissented in the gun control and
sexual assaults cases, saying the court should uphold the broad reach of
these federal laws.
Now, the medical marijuana case, Ashcroft vs. Raich, raises the same
constitutional issue, but with the ideological leanings reversed.
Conservatives in Washington who have been skeptical of gun control laws
tend to support strict antidrug laws. At the same time, many liberals
see Ashcroft's campaign against the medical marijuana laws as a classic
example of federal overreaching.
Kmiec, the law professor, argues that federal authorities do not have
the constitutional power to interfere with those who use homegrown
marijuana in California and nine other states that permit the practice.
He says that a "principled application of the commerce clause" suggests
that Ashcroft does not have the power to order raids on patients who
grow, rather than buy, marijuana for their own use.
Other conservative scholars, including Harvard law professor Charles
Fried, Reagan's solicitor general; Northwestern law professor Steven G.
Calabresi, a founder of the Federalist Society; and the University of
Chicago's Richard A. Epstein, a leading advocate of property rights,
also filed briefs in support of California's right to permit the medical
use of marijuana.
Boston University law professor Randy E. Barnett, a libertarian, will
argue the case for Angel Raich, an Oakland woman who suffers from an
inoperable brain tumor and a wasting disease. She says marijuana has
been uniquely effective in easing her pain. The court will hear
arguments in the case Monday.
The practical effect of the case is not entirely clear. Even if the
justices rule for Ashcroft, the decision would not void the California
law. That might create a situation in which state and local police would
not arrest those using medical marijuana, but federal authorities could.
Under the terms of the 1996 voter initiative, it is legal under
California law for seriously ill people to obtain and use medical
marijuana, and state and local police should not interfere with those
who use marijuana under such conditions.
The wine dispute takes the court back to the end of national Prohibition
in 1933. The 21st Amendment gave the states control over alcohol that
crossed their borders, and they in turn used this authority to set up
elaborate, and sometimes unique, regulations governing the sale of beer,
wine and liquor.
Nearly all the states require that alcohol be sold through licensed
wholesalers and retailers. However, California and several other
wine-producing states permit the direct shipments of wine to consumers
in states that allow it.
Michigan and New York, along with more than half of the states, strictly
forbid out-of-state vineyards from shipping wine directly to consumers.
These bans were challenged by advocates of free trade, who say the
system of licensed wholesalers amounts to government-mandated
Clint Bolick of the libertarian Institute for Justice, and Kenneth W.
Starr, the former independent counsel and the solicitor general for
President George H.W. Bush, are among those representing small wineries
in California and Virginia that are challenging the state bans on direct
sales. They say these laws amount to economic protectionism.
"This case will decide whether consumers or a cartel of billion-dollar
liquor distributors will determine what wine is available to consumers
in New York or two dozen other states," says Bolick.
The National Assn. of Evangelicals and the group Concerned Women for
America have joined in defense of the state laws, saying the strict
controls are needed to prevent underage drinking.
Agreeing with the evangelicals, Georgetown University law professor Viet
Dinh, a former assistant to Ashcroft and the chief author of the USA
Patriot Act, says the court should reject the free-trade arguments.
"This could open the door to the deregulation of alcohol. There is a
potential for total alcohol anarchy," says Dinh, who filed a brief on
behalf of the Wine and Spirits Wholesalers of America in defense of the
A long list of prominent conservative lawyers have joined the case on
the side of Michigan and New York. They include C. Boyden Gray, White
House counsel under the first President Bush; Washington attorney Miguel
A. Estrada, who withdrew his nomination to a U.S. appeals court after
Senate Democrats blocked his confirmation vote; and former Judge Robert
Bork, President Reagan's failed nominee to the Supreme Court.
"This seems to be a case with conservatives, and only conservatives, on
both sides," says Dinh. "I think our side is helped because we have the
strong support of the faith-based community."
The Supreme Court will hear the Michigan and New York cases (Granholm
vs. Heald and Swedenburg vs. Kelly) on Dec. 7.
Related Articles & Web Sites:
The Cato Institute
Raich vs. Ashcroft
Angel Raich v. Ashcroft News
Medical Marijuana and The Supremes
Medical Marijuana Before Supreme Court
Supreme Court Is Set To Consider Med Marijuana