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November 29, 2004


John V. Petersen, Esq.

When I first read about this case, the Lopez Case immediately came to mind. If memory serves, Justice O'Connor wrote that opinion. Interesting the see that O'Connor started off with that case as a reference. IMO, that is a tough case for the Gov't. Given that she led off with that case, that gives a pretty good clue as to where the Supremes are going. You have to figure Scalia and Thomas - both proponents of the 10th. Amendment - are going to reel in the statute as unconstitional. Most likely, O'Connor will be on board. This could be an 8-1 or 7-2 decision - against the Gov't.

Thanks for posting this summary!!


Judy Osburn


No, Rehnquist (joined by Scalia and Kennedy), not O'Connor, penned the majority opinions in both Lopez and Morrison.

However, even before Lopez Justice O'Connor, a proponent of state rights, wrote an extremely applicable analysis of the three important reasons for federalism in FERC v. Mississippi (1982): 1) states serve as laboratories for social experimentation, 2) self-government on local issues, and 3) as a check on tyranny.

O'Connor listed examples illustrating that states service as "laboratories for the development of new social, economic, and political ideas" is "no judicial myth" --including Wyoming's experiment with equal sufferage some 30 years "before that novel idea" bore "national fruit." (FERC v. Mississippi, 456 U.S. at 788 (1982) O'Connor, concurring.) She continued with a paragraph emphasizing the importance of local government as "a cornerstone of American Democracy," stating: "If we want to preserve the ability of citizens to learn democratic processes through participation in local government, citizens must retain the power to govern, not merely administer, their local problems."

So, yes, as you say, O'Connor will be on board.

Though Justice Stevens dissented in both Lopez and Morrison, he nonetheless agrees that federal law should not override contrary state criminal laws. He emphasized in his concurring opinion in Jones v. United States (2000) (where a unanimous court refused to apply federal arson law due to a lack of substantial affect on interstate commerce) "the kinship between our well-established presumption against federal pre-emption of state law." (529 U.S. 848, 859-60.) And in his concurring opinion in Oakland Cannabis Buyers Coop (in which he attempted to limit the reach of the ruling against OCBC) Stevens also quoted Ninth Circuit Justice Kazinsky's statement in Conant v. Walters that physician supervised use of medical marijuana cannot have much effect on interstate commerce.

Justice Thomas has taken every opportunity to write concurring and dissenting opinions castigating Wickard v. Filburn's aggregation principle relied on by the government in Raich. Thomas cannot join any opinion that would give Congress "interstate commerce is whatever we say" power requested by the government in Ashcroft v. Raich. And if Rehnquist, Scalia and Kennedy can follow their own precedents, we will have a clear majority with Stevens, O'Connor and, judging from what I've read from observations of the Raich oral argument, Justice Ginsburg.

So I would also agree with JVP's prediction of a 7-2 decision against the government--except for the unpredictability of some of the otherwise conservative justices caused by the conflict between federalism and their zeal for excessiveness when it comes to the war on (unpatentable) drugs. Therefore I can only hope for a close majority in favor of compassion, common sense, the will of the people in eleven states, and the rights of those in every other state to determine appropriate health regulations.

Judy Osburn
(Civil forfeiture proceedings against our ranch home of 28 years and my appeal of the related federal conviction for maintaining a place where marijuana was grown pursuant to state law for the Los Angeles Cannabis Resource Center, in a cooperative partnership with the Los Angeles Sheriff's Deptment under supervision of the City of West Hollywood, are both presently stayed pending disposition of Ashcroft v. Raich.)

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