[LA Times] High Court Cases Show 2 Sides of Conservatism

High Court Cases Show 2 Sides of Conservatism
*It's law and order vs. limited government in medical mar1juana and wine-shipping disputes.

By David G. Savage, Times Staff Writer

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 mar1juana 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, p*rnography, drugs, immigration and homosexuality. The small-government, free-market conservatives seek fewer restrictions on private behavior.

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 mar1juana 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 mar1juana.

But leading conservative academics, including veterans of the Reagan administration, have joined the case on the side of the California medical mar1juana users. They argue for limits on federal power and for protection of states' rights — including the right to enact the mar1juana law.

"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 mar1juana 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 mar1juana are not the only upcoming cases in which these two visions clash.

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 prescriptions.

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 Institute.

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 activism.

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 mar1juana 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 mar1juana 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 mar1juana 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, mar1juana 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 mar1juana.

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 mar1juana 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 mar1juana, 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 mar1juana, and state and local police should not interfere with those who use mar1juana 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 protectionism.

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 Michigan law.

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.

 

I found Scalia's comments amusing ...

Justices Take On Medical Pot Law

* There's no consensus as the high court debates whether U.S. antidrug policy supersedes California's medical mar1juana exception.

By David G. Savage, Times Staff Writer

WASHINGTON — The Supreme Court on Monday confronted a dispute between California's medical mar1juana law and federal antidrug policy, with a Bush administration lawyer arguing that the government's zero-tolerance law trumps the state measure.

"Smoked mar1juana really doesn't have any future in medicine," acting Solicitor Gen. Paul D. Clement told the court. If thousands of Californians were entitled to smoke mar1juana to relieve their pain, he said, the federal ban on this illegal drug could collapse.

Eight years ago, California voters approved a limited exception to the state's drug laws. Seriously ill patients were given the right to use mar1juana for medical purposes if they had a doctor's recommendation.

Federal authorities, however, have all but ignored the state law — as well as similar measures since enacted in 10 other states — and insisted that they retained the power to raid the homes of Californians who grow mar1juana for their own use.

The Supreme Court took up the issue Monday, not to decide whether mar1juana was a good medicine but to discuss whether the federal authority to "regulate commerce" extended to seizing homegrown drugs.

Outside on the court steps, one group of protesters called for liberalized drug laws to protect patients. Another sign-carrying contingent countered that stiff drug laws were needed to protect young people.

Inside the court, the justices debated the reach of their rules on federal authority. Although there was skepticism about the California law, no clear consensus emerged.

In the last decade, the high court's conservative majority — led by Chief Justice William H. Rehnquist — has insisted that the federal power to regulate commerce does not mean it can regulate everything. In 1995, for example, the Rehnquist majority struck down a federal gun control law and said "mere gun possession" was not part of interstate commerce.

In the medical mar1juana case, the ideological tables were turned. Liberal advocates used Rehnquist's words to challenge the federal authority to seize homegrown mar1juana.

"This is noneconomic activity and wholly intrastate," said Boston University law professor Randy E. Barnett, who represents two Northern California women who say mar1juana has been uniquely effective in relieving their pain. They are "not buying or selling" drugs, and therefore their use of mar1juana should be seen as beyond the reach of federal authority, Barnett said.

During Monday's argument, however, only one of the conservative justices — Sandra Day O'Connor — picked up on Barnett's argument for limiting federal authority. And two liberal justices who have argued for broad federal power said they were skeptical of limiting Washington's power in the area of drug laws.

Justice Stephen G. Breyer wondered about other illegal items. "You know, he grows heroin, cocaine, [or] tomatoes that are going to have genomes in them that could, at some point, lead to tomato children," said Breyer, spinning out what he conceded was a complicated hypothetical question. Are all these beyond the regulatory power of the federal government? he asked.

Not necessarily, Barnett replied. The government could ban all uses of a product, such as heroin, if the total ban were essential to maintaining control of that substance, he said.

That's a very complicated standard, Breyer responded. "Balancing those factors would be for Congress. That's what we'd normally say," he said. A former Senate staffer, Breyer has consistently urged the court to uphold acts of Congress.

Later in the argument, Breyer said he did not know whether mar1juana was good medicine, but he said the challengers should have taken their case to the Food and Drug Administration.

"Go to the FDA and say, 'Take this off the list of dangerous drugs.' That would seem to be the most obvious way to deal with this," Breyer said. "Medicine by regulation is better than medicine by referendum."

Justice David H. Souter wondered how the federal ban could survive if hundreds of thousands of Californians said they had a right to use mar1juana. "This whole argument boils down to how many people are involved," he said.

If it were only the two women — Angel Raich and Diane Monson, the plaintiffs in the lawsuit — then California's law would have little effect on the market for mar1juana, he said. But if many could claim the same right, the federal ban would be all but wiped out, he said.

"They are going to get [mar1juana] on the street" and claim they grew it for their personal use, Souter said.

Justice Antonin Scalia, a conservative proponent of limiting federal power, seemed to side with the government. He said the mere possession of illegal items had been a crime under the environmental laws. What about ivory tusks or eagle feathers? he asked. "We can't tell whether [those items] came through interstate commerce or not…. Why is that different from this?" Scalia asked.

Rehnquist, the court's foremost proponent of limiting federal power, was absent Monday. He was at home undergoing treatment for thyroid cancer. Justice John Paul Stevens said that Rehnquist planned to participate in deciding the case.

Justice Clarence Thomas, who in the past has strongly argued for limiting federal power, did not speak up during Monday's arguments.

O'Connor is often the swing vote in close cases, and she said Monday that California had a strong argument on federalism grounds.

"As I understand it, none of this homegrown mar1juana will be on any interstate market," she said. "And it is in the area of something traditionally regulated by states. This limited exception [to the drug laws] is a noneconomic use — growing for personal use."

But Clement said her premise was wrong.

"Drugs are fungible," the acting solicitor general said. "I think it might be a bit optimistic to think that none of the mar1juana that's produced consistent with California law would be diverted into the national market for mar1juana…. The reality is there's a $10.5-billion market — an illegal market, albeit — in mar1juana in the United States on an annual basis."

Stevens said he was not convinced that federal authorities always know best when it comes to patients. Does federal law "trump the independent judgment of the physicians who prescribe it for the patients at issue in this case?" he asked.

A doctor for Raich said she might not be able to live without mar1juana. She suffers from an inoperable brain tumor and a wasting disease, and other prescription drugs failed to relieve her pain and help maintain her weight, he testified.

The government's lawyer said federal law outweighs the testimony of doctors. "The idea of medical mar1juana is something of an oxymoron," Clement told Stevens. "Notwithstanding that some doctors may make a different judgment about a particular patient … the federal regulatory regime does not allow individual patients or doctors to exempt themselves out of that regime."

In its first medical mar1juana case, the high court sided with federal authorities three years ago and ruled that the Drug Enforcement Administration could shut down cannabis clubs, which distributed mar1juana to sick patients.

The current case began as a challenge to the federal authority to punish those who grew and used their own mar1juana. The challengers won a ruling in their favor from the U.S. 9th Circuit Court of Appeals, but the high court voted to take up Atty. Gen. John Ashcroft's appeal.

It will be several months before the high court hands down a ruling in Ashcroft vs. Raich.

If the court rules for Ashcroft, the decision will weaken, but not repeal, the medical mar1juana laws in California, Alaska, Arizona, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington. Those state measures prevent police and local prosecutors from punishing patients who use mar1juana for medical purposes.

However, a victory for Ashcroft would give federal agents new encouragement to raid homes and seize mar1juana plants.