Oral argument transcripts out! Here's the link. The tomato children are still in the official version. (Now you're going to go read it to see what I'm talking about, aren't you? Gotcha!)
Barnett gimself blogs about the arguments at the Volkh Conspiracy
(1
and
2).
See also some extremely detailed and excellent coverage at:
Also some shorter analyses at
the SCOTUS blog,
the Raich blog,
and
more SCOTUS blog.
the Legal Theory blog with notes taken from someone
inside.
Side note: what are 'tomato children'? If anyone knows, please drop me a line at ariel at (sorry but I hate spammers) columbia.edu.
Rehnquist:
Not present.
Stevens:
Stevens asked Barnett how allowing medical use of marijuana would affect the illegal market. The lawyer said it would slightly reduce demand and reduce prices.
``Reduce demand and reduce prices? Are you sure?'' Stevens said.
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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.
O'Connor:
Her colleague, Justice Sandra Day O'Connor, observed that homegrown medical marijuana never makes it to the interstate market.
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Justice Sandra Day O'Connor, however, told Clement that two recent Supreme Court's rulings limiting the reach of Congress's power to regulate commerce among the states "dictate some concern."
Plus, the California law involving home-grown marijuana concerned an "area traditionally regulated by the states," she said.
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O'Connor asked whether the government was creating too long of a "causal chain" from local, personal medical marijuana use to reach an effect upon interstate commerce, but Clement insisted he's not bootstrapping.
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"As I understand it, none of this homegrown marijuana 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."
Scalia:
Justice Antonin Scalia said Congress also has adopted endangered species laws making it unlawful to possess items such as eagle feathers or ivory. "Are those laws likewise unconstitutional?" he asked.
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And Justice Antonin Scalia said there are many people with "alleged medical needs."
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Justice Antonin Scalia, the staunchest supporter of the federalism revolution, appeared strongly opposed to extending it to protect "communes" in California where, he said, marijuana was produced for "a whole lot of people [with] alleged medical needs."
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Justice Antonin Scalia, a conservative proponent of limiting federal power, said that possession of illegal items has 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." Are those laws unconstitutional? he asked.
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"It looks like Wickard to me," Justice Antonin Scalia told him, adding: "I always used to laugh at Wickard, but that's what Wickard says." He continued: "Why is this not economic activity? This marijuana that's grown is like wheat. Since it's grown, it doesn't have to be bought elsewhere."
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Scalia went on say that at some communes in California, marijuana is available, and there is no proof that it is bought or sold, raising doubts about whether it is a commercial act that the federal prosecutors could stop. "There's a whole lot of people there with a lot of medical need," he said, jesting.
Kennedy
Justice Anthony Kennedy, however, wondered how the court could assume that all patients were growing marijuana themselves instead of buying from drug dealers.
"Can't we infer from the enormous commercial market that possession of the drug is proof of participation in the market?" Kennedy asked.
"Maybe it is and maybe it isn't," Barnett said.
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"There is an enormous common market" in marijuana, Justice Anthony Kennedy told Barnett. "The simple possession of that commodity is participation in that market."
Souter:
Justice David Souter asked Barnett about the government's estimate that as many as 100,000 people could use marijuana for medical purposes if the court rules for the two women. Barnett disputed the 100,000 number.
But Souter said there could easily be 100,000 cancer patients undergoing chemotherapy in California. He said that would undercut Barnett's argument that the amount of marijuana used for medical purposes would have a "trivial impact" on the market nationwide and on prices.
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Justice David H. Souter said about 10 percent of people in America use illegal drugs, and states with medical marijuana laws might not be able to stop recreational users from taking advantage.
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There's no reason to believe ``everybody is going to get it from a friend or from plants in the back yard,'' Justice David H. Souter told the lawyer for the two women. ``They're going to get it in the street. Why isn't that the sensible assumption?''
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Justice David H. Souter wondered how the federal ban could survive if hundreds of thousands of Californians said they had a right to use marijuana.
"This whole argument boils down to how many people are involved," he said.
If it were only the two California women . Angel Raich and Diane Monson . who are the plaintiffs in the lawsuit, that would have little impact on the market for marijuana, he said. But if hundreds of thousands could claim the same right, the federal ban would be all but wiped out, he said.
"They are going to get it (marijuana) on the street" and claim they grew it only for their personal use, Souter said.
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Justice Souter said the circumstances of the two plaintiffs were "not a realistic premise on which to base constitutional law."
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He adds, "every kid buying a bag or whatever you'd call a small quantity ... they're not getting prosecuted."
Thomas:
No questions asked during arguments.
Ginsburg:
Justice Ruth Bader Ginsburg said the federal government has a stake in interstate commerce, but with the California medical marijuana patients: "Nobody's buying anything. Nobody's selling anything."
Breyer:
Justice Stephen Breyer said the two women could have gone to U.S. regulators and asked them to allow the use of medical marijuana. If denied, they then could have sued.
"That seems to me the obvious way to get what they want," Breyer said. "Medicine by regulation is better than medicine by referendum." The California law was adopted in a voter referendum in 1996.
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"Everybody will say mine is medical," Justice Stephen Breyer said.
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Justice Stephen G. Breyer wondered about other illegal items.
"What if he grows heroin? Or cocaine?" he asked. Would that too be outside the reach of federal regulatory law, he asked.
Not necessarily, Barnett replied. The government could ban all uses of a particular product, such as heroin, if this total ban were essential to maintaining control of it, he said.
That's a very complicated standard, Breyer responded. "Balancing those factors are normally for Congress, not us," he said.
Breyer said he did not know whether marijuana 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 most obvious way to deal with this," Breyer said. "Medicine by regulation is better than medicine by referendum."
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"They never went to the FDA to try to get marijuana rescheduled," Breyer said. "So how can we take for a fact that medical marijuana actually exists?"
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"I don't know if it's true that medical marijuana is helpful to people in a way that pills are not," Justice Stephen Breyer told Barnett, "but if your clients take that position they can go to the FDA, and if they lose they can go to [federal] court and claim an abuse of discretion by the agency."
All Things Considered rough transcript...
Clement made the argument that Congress made the decision to criminalize marijuana , because it is a drug with high potential for abuse.
O'Connor talked about two recent Supreme Court decisions striking down federal laws with no connection to regulating national economy. The marijuana in this case is home grown, not bought or sold and not sent across state lines.
Clement: I think it's optimistic to say none of the marijuana here will be diverted elsewhere.
O'Connor: Don't we have to assume that California will enforce its own law?
Clement: California can't enforce it because drugs are fungible. There are an estimated 100,000 people in California who might qualify for the medical exception and the situation would simply be uncontrollable.
Kennedy: Does it make your case easier that you're talking about an illegal substance?
Clement: Yes, to have any little island of lawfullness frustrates the national goal of banning marijuana.
Ginsberg: Let's assume you're right generally. If there were a prosecution of these individuals would there be any defense?
Clement: No, because if there is an exception for medical use it could be extended to recreational use.
O'Connor: Isn't this different because it's nonecomonic use?
Clement: This is economic activity. It's the manufacturing and possession of a valuable commodity.
Kennedy: So, the federal statute trumps the judgments of the individual and her doctor?
Clement: The federal regime does not allow patients or their doctors to substitute their judgment for that of Congress.
Barnett starts...
Scalia: The endangered species act makes the possession of eagle feathers illegal, and it doesn't matter whether they were obtained within a state or across the state's borders. The point is it's impossible to tell, so it's all illegal. Is that law unconstitutional too?
Barnett: No.
Scalia: Why is that different?
Barnett: Because in this case maedical marijuana use has been isolated by the state of California and it's policed by the state.
Scalia: I understand there are whole communes in ca that claim to be using marijuana for medical purposes.
Breyer: The government says that the medical certificates for use will circulate on the black market, that it will be a mess. Now normally we would say that it's for Congress to weigh all these factors.
Stevens: what would be the effect on interstate commerce if you win? Would the price of marijuana go up or down?
Barnett: The effect would be trivial . If there were any effect there would be a slight decrease in price because some sick people would be able to withdraw from the market.
Souter: The whole argument boils down to how many people are involved. You don't accept the government's figure of 100,000 people, but how many people are there undergoing chemotherapy in California?
Barnett: I don't know.
Souter: Well, with 34 million people in the state, 100,000 doesn't seem wildly off. So if you accept that, your argument that the number is trivial would seem to be insupportable.
Hey! Actual Excerpts!
From the Tallahasee Democrat (here for the original. I reproduce here because I don't know how long they'll keep the article live.
(This is actually from the AP via them.)
Excerpts from Monday's Supreme Court oral argument on medical marijuana, as transcribed by Alderson Reporting Co.:
JUSTICE SANDRA DAY O'CONNOR: "As I understand it, if California's law applies, then none of this homegrown or medical-use marijuana will be on any interstate market. And it is in the area of something traditionally regulated by states."
ACTING SOLICITOR GENERAL PAUL CLEMENT: "Well, Justice O'Connor, let me first say that I think it might be a bit optimistic to think that none of the marijuana that's produced consistent with California law would be diverted into the national market for marijuana. And, of course, the Controlled Substances Act is concerned, at almost every step of the act, with a concern about diversion, both of lawful substances from medical to nonmedical uses and from controlled substances under Schedule I into the national market."
CLEMENT: "Any little island of lawful possession of noncontraband marijuana, for example, poses a real challenge to the statutory regime. It would also, I think, frustrate Congress' goal in promoting health. And I think the clearest example of that is the fact that, to the extent there is anything beneficial, health-wise, in marijuana, it's THC, which has been isolated and provided in a pill form."
JUSTICE RUTH BADER GINSBURG: "There is, in this record, a showing that, for at least one of the two plaintiffs, there were some 30-odd drugs taken. None of them worked. This was the only one that would. ... If there were to be a prosecution of any of the plaintiffs in this case, would there be any defense?"
CLEMENT: "Well, Justice Ginsburg, I think we would take the position, based on our reading of the (2001) Oakland Cannabis case - and, obviously, different justices on this court read the opinion differently and had different views on the extent to which the medical-necessity defense was foreclosed by that opinion - I would imagine the federal government, in that case, if it took the unlikely step of bringing the prosecution in the first place, would be arguing that, on the authority of Oakland Cannabis, the medical-necessity defense was not available."
CLEMENT: "There's something like 400 different chemical components in crude marijuana that one would smoke, and it just sort of belies any logic that all 400 of those would be helpful. ... Smoked marijuana doesn't have much of a future as medicine is, as I think people understand, smoking is harmful. And that's true of tobacco, but it's also true of marijuana. And so the idea that smoked marijuana would be an effective delivery device for medicine, I think, is also something that really doesn't have any future as medicine."
RANDY BARNETT, representing two ill California women: "If you accept the government's definition of economic, then washing dishes, today, would be economic, and that would be within the power of Congress to reach."
JUSTICE DAVID H. SOUTER: "You say it's noneconomic because one of these people is a self-grower, another one is getting it from a friend for nothing. But I don't see what reason that you have given, or any reason that you haven't given, for us to believe that, out of - now I'm going to assume, for the sake of argument, 100,000 potential users - everybody is going to get it from a friend or from plants in the back yard. Seems to me the sensible assumption is they're going to get it on the street. And once they get it, under California law, it's not a crime for them to have it and use it. But they're going to get it in the street."
BARNETT: "They have a very strong incentive not to get it on the street, because getting it on the street is going to subject them to criminal prosecution, under both California and federal law. ... We are talking about a class of people here who are sick people, who don't necessarily want to violate the law."
SOUTER: "And if I am a sick person, I'm going to say, `Look, if they're not prosecuting every kid who buys, what, a nickel bag or whatever you call a small quantity today, they're not going to prosecute me, either.' I mean, there's not going to be any incentive, it seems to me, to avoid the street market."
JUSTICE STEPHEN BREYER: "You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston. You know, we can - oil that's never, in fact, being used, but we want an inventory of it, federally. You know, I can multiply the examples. And you can, too. So you're going to get around all those examples by saying what?"
BARNETT: "By saying that it's all going to depend on the regulatory scheme."
JUSTICE ANTONIN SCALIA: "Congress has applied this theory in other contexts. One is the protection of endangered species. Congress has made it unlawful to possess ivory, for example. It doesn't matter whether you got it lawfully or not. Or eagle feathers, the mere possession of it, whether you got it through interstate commerce or not. And Congress' reasoning is, `We can't tell whether it came through interstate commerce or not, and to try to prove that is just beyond our ability; and, therefore, it is unlawful to possess it, period.' Now, are those laws, likewise, unconstitutional, as going beyond Congress' commerce power?"
BARNETT: "Not if they're an essential part of a larger regulatory scheme that would be undercut, unless those activities are reached. ... This class of activities - because it's been isolated by the state of California and is policed by the state of California, so that it's entirely separated from the market."