As our blogfather Eugene notes, Larry Solum has an amazingly detailed account of the argument in Raich, paraphrasing the main moves. It appears that both sides of the argument did well, but (if Solum’s account is accurate) Randy Barnett did brilliantly (with the harder side). Here is the most interesting exchange for me:
Souter: Suppose that 100,000 people are in chemotherapy in California. Then couldn’t there be 100,000 users of medical marijuana?
Barnett: There could be.
Souter: If there are 34 million people in California, then there could be 100,000 people in chemotherapy.
Barnett: It is important to remember that the law confines medical cannabis use to the people who are sick and have a physicians recommendation. Wickard v. Filburn’s aggregation principle does not apply if the activity involved is noneconomic.
Souter: But isn’t the argument that it is economic activity if it has a sizeable effect on the market?
Barnett: No. The effect on the market is only relevant if it is market activity.
Souter: But in Lopez wasn’t the effect on the market much more remote than the effect involved in this case?
Barnett: The point is that economic activity and personal liberty are two different categories.
Souter: That is not a very realistic premise.
Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic.
Breyer: If marijuana is medically helpful, can’t your clients go to the FDA and get it rescheduled. Then if the FDA rules against them, they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn’t I believe as a judge and an individual that it is doubtful there is a medical benefit? Is medicine by regulation better than medicine by referendum?
RB: I would simply ask you to read the account of obstruction of research in the amicus brief and the Institute for Medicine report cited by both us and the government. It is true that marijuana is smoked, but that is because it saves the lives of some sick people.
As Solum notes, Barnett’s marriage/prostitution analogy was particularly good. It’s still a difficult case for the Court, but Randy’s argument was strong enough that I now think the odds for his side are almost even (remember, however, that I was one of the sages who thought that Kerry would win). After I get a chance to talk with Barnett and Solum, I might revise this estimate.
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