November 28, 2004
THE NATION
High Court Cases Show 2 Sides of Conservatism
It's law and order vs. limited government in medical marijuana 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 marijuana 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, pornography, 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 marijuana 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 marijuana.
But leading conservative academics, including veterans of the Reagan administration, have joined the case on the side of the California medical marijuana users. They argue for limits on federal power and for protection of states' rights — including the right to enact the marijuana 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 marijuana 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 marijuana 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 marijuana 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 marijuana 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 marijuana 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, marijuana 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 marijuana.
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 marijuana 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 marijuana, 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 marijuana, and state and local police should not interfere with those who use marijuana 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.
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