Supreme Court Strikes Down "Necessity Defense" for Marijuana

    On May 14, the United States Supreme Court unanimously reversed a decision of the Court of Appeals for the Ninth Circuit, which had created a "necessity defense" for distributing marijuana.  The Oakland Cannabis Buyers' Cooperative was set up after the passage of an initiative in California which made a medical use exception to the state's marijuana laws.  However, marijuana remains illegal under federal law, and because Congress placed it "Schedule I," there is no medical use exception.  The majority opinion by Justice Thomas expresses some doubt whether courts can ever read a necessity defense into a federal criminal statute.  There is no need to answer that question in the present case, however, because the schedule system clearly allows medical prescription for some controlled substances and disallows it for others, and by placing marijuana on Schedule I Congress has precluded the courts from making a contrary decision.

    Justice Thomas' majority opinion also notes the federalism implications of allowing Congress to override the decision of the state's voters.  However, the statute is clear.  "Because federal courts interpret, rather than author, the federal criminal code, we are not at liberty to rewrite it. Nor are we passing today on a constitutional question, such as whether the Controlled Substances Act exceeds Congress’ power under the Commerce Clause."

    Chief Justice Rehnquist and Justices O'Connor, Scalia, and Kennedy joined the majority opinion.  Justice Stevens wrote a separate concurrence, joined by Justices Souter and Ginsburg.  Justice Breyer was recused.

    This case presented something of a dilemma for those who believe in both federalism and judicial restraint.  On one hand, Congress is overriding the law of the state on something that arguably should be a local decision.  On the other, the statute is clear, and, absent a constitutional argument, courts ought to enforce statutes as written.


Supreme Court Opinion (PDF)

Ninth Circuit Opinion (HTML)

Solicitor General's Brief (HTML) or (PDF)


2003 The Federalist Society