No Day in Court: Drug Reform Victory Won't Come from the Courts

Rare is the court hearing that generates a media hoopla, but an argument scheduled for earlier this week at the U.S. Ninth Circuit Court of Appeals — that pack of activist judges widely derided as liberal agitators by the American right-wing — was poised to create a stir.

The court, attorneys arguing the case excitedly told the media, was going to hear oral arguments on Californians' rights to smoke marijuana, which they say have been restricted since the Justice Department-led crackdown on the state's weed industry began in 2011 (and which has meanwhile left multiple cannabis dispensaries unmolested for every one shut down).

The federal government was going to have to answer for shutting down taxpaying, licensed businesses. Federal judges were going to grill federal prosecutors!

For about an hour. Then, another press release appeared, this one much less enthusiastic: The court had canceled the oral arguments. A written decision, almost certainly dismissing cannabis proponents out of hand, is expected. No day in court for weed, not this time.

And not anytime soon. It's been some time since a federal marijuana case made much headway. A decadelong effort to remove marijuana from the DEA's list of most-dangerous, most-medically-useless substances reached the door of the Supreme Court this past fall before the justices decided not to hear it at all. SCOTUS did hear a weed case way back in 2005, a case so old now it was originally filed against John Ashcroft and heard by William Rehnquist.

The dramatic timing of this latest setback will fuel fears of a vast government conspiracy against a plant (and, fairly or not, remind drug reformers of the time the local U.S. Attorney canceled an appearance at a local law school after she heard that cannabis protesters planned to be there).

More importantly, it will do nothing to soothe a drug reform movement in California tired of setbacks.

The prevailing wisdom on drug reform is that only the people — that is, those who bother to vote — will enact change; legislators won't and the judiciary can't. Change, they say, must come from below.

Except when it doesn't: Some of the biggest victories in social justice in America, some of the biggest steps forward in the last 50 years — marriage equality, desegregation and voting rights, a woman's choice to end her pregnancy — have been handed to us by the courts.

This appears unlikely to happen with drug reform. And indeed, when the judicial branch has gotten involved, things have often turned out worse for the drug legalization movement.

Thanks to the courts in California, it's legal to fire someone simply for using medical marijuana (Ross vs. RagingWire), it's okay for weed-fearing cities and counties to ban dispensaries outright (Riverside v. Inland Empire Patients Health and Wellness Center), and truly weed-hating cities can even go one step further and decide that they can ban medical marijuana cultivation (Maral vs. City of Live Oak) despite state law saying it's okay to tend at least six plants.

And it would be much, much worse if not for the California Supreme Court stepping in to make a save in a backhanded way: An appeals court a few years back ruled that federal law pre-empts state law on medical marijuana — which could have led to every dispensary in every city in the state getting shut down. The court tossed that ruling out, but the lesson was learned.

“The courts are leading on this,” says a medical-marijuana attorney who asked not to be named (as to not piss off the courts), “but they're leading in the wrong direction.”

The showdown in the Ninth Circuit that was to be this week likely wasn't going to go anywhere: Attorneys were set to argue that, similar to a woman's right to end a pregnancy, people in California have a right to smoke marijuana under state law if they choose. That same due process argument has been tried before — and has yet to succeed.

The problem is that actions in Congress are often led by a move by the courts, which — as the gay marriage struggle has shown us over the last decade — often lead the people. So that puts us back where we began — waiting for the movement from below to get going.

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