One more thing ... Justice Breyer is Congress' best friend on the Supreme Court, supportive of giving it a wide berth, even if a straightforward reading of the Constitution calls into question its use of power [this even applies in some cases to matters of the First Amendment, like indecency regulation]. Therefore, those who support the local option method of medicinal marijuana regulation are not likely to get his vote. For instance, Justice Breyer suggested the patients petition the FDA ... I mentioned how this has proven fruitless. [For instance, after the argument, some anti-marijuana suit offered this option, but slyly slipped in that "they won't, since they know they will fail." Yeah. Ok.]
Justice Breyer also quipped that medicine by regulation is better than medicine by referendum. Cute, but referendum is a way for the state to establish regulation. If we allow delegation to a federal agency, whose own administrative judge noted there is evidence of medicinal value, why not to the people themselves? The Court should focus on the division of federal/local power, not the policy concerns involved. And, the feds would not suddenly okay California's policy if it was passed by the state legislature. Who, by the way, pass rules regulating medicine (e.g., licensing doctors) all the time.
More on Medical Marijuana: Some good background materials on the medicinal marijuana case can be found here, while some interesting thoughts on the medicinal side can be found in various posts by this person. As to the likelihood of success, not only are many quite pessimistic, some question if even one justice will vote for the patients!
Mark Kleiman, who is involved in drug policy, is quite cynical about the government's Commerce Clause argument, and reminds people how the government has blocked attempts to research the drug. OTOH, he too doubts the government will lose, and is cynical about the medicinal marijuana advocates bona fides (are they really serious about trying to get medical research? but you just said it was blocked!)
A couple other things. The patients' advocate was Randy Barnett, a libertarian sort who I saw in person discussing his latest book. He has an interesting if somewhat extreme (not necessarily bad, but not mainstream, let's say) view of federal/state power that as a whole would not likely get more than one vote (if that: Justice Thomas dissented in the sodomy case) on the Supreme Court.
The person that he calls to mind is Lawrence Lessig, who managed to get two votes to support his view of the Copyright Clause (regarding extending copyright terms repeatedly and for really long terms). The fact both were right that Congress was stretching their powers way too far both on policy and constitutional grounds is nice and all. But, what will it result in way of votes? Sure, even many Red States either allow medicinal marijuana use or supported the right of states to so choose, but this bunch is not always that consistent.
I also saw the comments to the press after the oral argument. One of the patients noted she was once prescribed Vioxx for her pains, which actually has been shown to be lethal. She really shouldn't have compared medicinal marijuana to aspirin, though overall she tried to argue the limited nature of the effort. The main patient's doctor, coming up after an anti-drug warrior (are they against all drugs as medicine or just those that have been shown to be relatively weak?) that made a snide remark about no physician supporting such use, was pretty good. Did his ponytail give him away? Or, perhaps his failure to avoid the issue of medicinal heroin?
But, I guess such concerns boil down to politics, not medicine: important, but on some level besides the point. We aren't on that level though, are we? For instance, one aspect of medicinal marijuana that probably gives it a bad reputation is the idea that it causes a high. Many users argue that this doesn't occur, but if it does to some extent, so what? Many drugs have side effects, some rather horrible, and this one is arguably quite beneficial.
Solomon Amendment: The Third Circuit decided that law schools that bar military recruiters because of the military's anti-gay policies (allowing them on campus is interpreted by many to violate anti-discrimination policies) cannot be deprived of federal funding.
I find this a troubling decision. Putting aside that I think the anti-discrimination reading is a stretch (equality trumps free speech? just allowing the recruiters while strongly criticizing the military's policy equals support?), why should the government be forced to fund schools that refuse to support the military? Sadly, the military's policy has not been held to be unconstitutional. And, these days more than most, the government has a strong interest to promote military recruitment.
Also, free speech and associational rights do not bring with them a blanket right to funding. This is especially the case when the state has a strong legitimate interest that the school is hindering. I'd add that keeping out groups you oppose on ideological grounds does not really further free speech overall, though it might promote academic freedom (the two are not necessary the same thing). And, as far as it goes, the trend suggesting speech rights also brings funding rights (even if state funding of religious publications or scholarships to study to be a minister are involved) has just been taken too far.
The dissent is right.