Posted 12:52 AM by Robert

Misunderstanding The Court

Linda Greenhouse continues as the greatest single souce of misinformation about the United States Supreme Court with this:

The Supreme Court, in a silent rebuff on Tuesday to federal policy on medical marijuana, let stand an appeals court ruling that doctors may not be investigated, threatened or punished by federal regulators for recommending marijuana as a medical treatment for their patients.

What the Supreme Court actually did was to decline to review the lower court (Ninth Circuit) decision. One of the most basic rules of Court watching is that such refusals to review do not indicate an implicit approval of what the the lower court has done. In fact, the Court generally waits for a "split in the circuits" - that is, a contrary decision by another circuit - before accepting review of a case like this one. There's a good reason for that: varied circuit court opinions usually provide lots more good reasoning and analysis for the issue at stake. That the federal government asked the Court to review the case increased the chance that the Court would do that - but it's not a sure thing by any means.

Also contrary to another of Ms. Greenhouse's assertions, the Ninth Circuit opinion was anything but "strong." That's why (as she puts it): Advocates of medical marijuana greeted the court's action as a significant and surprising victory.

For the moment, "weak Ninth Circuit opinion" equals "surprising Supreme Court decision not to reverse." But the Supreme Court will almost certainly reverse this decision once other federal circuit courts have ruled on the matter.