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Medicinal marijuana: It’s not just for kooks anymore. So said 9th Circuit Judge Alex Kozinski in a forceful concurring opinion issued earlier this week. “A surprising number of health care professionals and organizations,” Kozinski wrote in Conant v. Walters, 02 C.D.O.S. 10709, “have concluded that the use of marijuana may be appropriate for a small class of patients who do not respond well to, or do not tolerate, available prescription drugs.” To many of us living in San Francisco — this green, leafy version of Lourdes — Kozinski’s message is not new. What is significant, though, is the identity of the messenger — a Republican stalwart whose legal opinions carry substantial weight in mainstream legal circles. And Kozinski’s target audience was clear: the U.S. Supreme Court. With Kozinski and the Republican-led California Supreme Court each having issued opinions this year supportive of medicinal marijuana, pot advocates might now realistically hope that the U.S. Supreme Court, that bastion of judicial callousness, will finally see the light on this issue. In May of last year, the nation’s highest court issued its own medicinal marijuana opinion. In United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, the court said that operators of a nonprofit pot club who had been charged with manufacturing and distributing marijuana could not raise the defense of medical necessity. That is, they could not even argue in court that they had sold pot only to help seriously ill patients avoid needless suffering. “Under any conception of legal necessity, one principle is clear: The defense cannot succeed when the legislature itself has made a ‘determination of values,’” Justice Clarence Thomas breezily concluded. “In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception. … Indeed for purposes of the Controlled Substances Act, marijuana has ‘no currently accepted medical use’ at all.” The supposedly strict constructionist court went on to make clear that no medical necessity defense would be available for mere possession of marijuana, either, if the court were ever faced with that question. Justice John Paul Stevens and two others concurred separately to distance themselves from that part of the ruling. Tuesday’s 9th Circuit opinion addressed a different issue: whether the government could revoke a physician’s license for recommending use of marijuana. Judge Mary Schroeder wrote a workmanlike majority opinion, making the legal case that doctors’ First Amendment rights outweigh the negligible governmental law enforcement interests at issue. But Kozinski wrote separately and passionately, creating what reads like a petition for rehearing in the Oakland Cannabis Buyers’ case — or at the very least an attempt to help medical pot users if the possession issue ever does reach the high court. “To those unfamiliar with the issue, it may seem faddish or foolish for a doctor to recommend a drug that the federal government finds has ‘no currently accepted medical use in treatment in the United States,’” Kozinski wrote. “But the record in this case, as well as the public record, reflect a legitimate and growing division of informed opinion on this issue.” Kozinski went on to point out that the National Institute of Medicine of the National Academy of Sciences and the British House of Lords — the latter body “not known for its wild and crazy views” — have endorsed the concept of medicinal marijuana. “For the great majority of us who do not suffer from debilitating pain,” Kozinski continued, “or who have not watched a loved one waste away as a result of AIDS-induced anorexia … it doesn’t much matter who has the better of this debate. But for patients suffering from MS, cancer, AIDS or one of the other afflictions listed in the [National Academy of Sciences] report, and their loved ones, obtaining candid and reliable information about a possible avenue of relief is of vital importance.” Then Kozinski showed his poker hand. He argued that the federal government is operating “at the periphery of its powers” in these types of cases. “Medical marijuana, when grown locally for personal consumption,” he wrote, “does not have any direct or obvious effect on interstate commerce. Cf. Oakland Cannabis Buyers’ Coop., 532 U.S. at 495 n.7 (reserving ‘whether the Controlled Substances Act exceeds Congress’ power under the Commerce Clause’).” That citation took some chutzpah, notwithstanding the “cf,” because the Supreme Court was reserving the constitutional issue in only the most hypothetical fashion. Indeed, the footnote Kozinski cited is the one that Stevens, in his separate concurrence, singled out as the most troubling aspect of the majority opinion. It’s hard to imagine the Supreme Court’s conservative majority backing off its hard-line stance on medicinal marijuana. But times change, and so will the makeup of the U.S. Supreme Court, someday. Maybe, just maybe, by the next time a medicinal marijuana case makes it there, the justices will have heard enough compassionate voices like Kozinski’s and reconsider.

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