Intelligent Debate in the Supreme Court

Well, you wouldn’t know it from the early press…
Gina Holland’s AP pieces
Court Questions Possible Abuse of Pot Laws” and “Wary Court considers Medical Marijuana” along with AP’s “Justices Appear Hesitant To Endorse Medical Marijuana” would certainly lead you to believe that Barnett faced a serious problem and that Clement had a cake-walk.
Reuters came out with a piece that seemed to have sealed the deal:

WASHINGTON (Reuters) – Several U.S. Supreme Court justices expressed reservations on Monday about allowing medical marijuana for sick patients whose doctors have recommended they smoke it for pain.

The justices appeared sympathetic to the federal government’s argument that it has the power to prosecute or take other action against patients who use home-grown marijuana in states with laws allowing medical use.

Some of the pieces would mention a single question of a Justice (out of context and without the answer given) as indication of the Justice’s view, when the Supreme Court Justices often probe with their questioning to bring out important points.
Of course, reality was a bit more complex than that.
Huge thanks are due to Lawrence Sulom’s Legal Theory Blog for a complete recap and analysis.
Once you read that, you realize that there was a good discussion — that the Justices were not as stupid as the AP reports would lead you to believe — and that we’ve got a barn-burner of a case going on here.
I’m going to need to soak it in a little more, but I’m sure I’ll comment more on the specifics later.

[Thanks to Volokh Conspiracy]

Update: Another reaction to the arguments from Timothy Lynch of the Cato Institute, who co-authored an amicus brief, is available at the Ashcroft v. Raich Federalism Blog. It’s a little more pessimistic overall regarding the degree to which the Justices went after Barnett.
Further Update: Marty Lederman at SCOTUS blog has decided to predict a unanimous vote in favor of the federal government. (Since I earlier called unanimous the other direction, at least one of us is likely to be wrong.)

This entry was posted in Uncategorized. Bookmark the permalink.