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Thank you, John, for once again providing clear and authoritative analysis on this case. Your reporting has been a critical resource for my own coverage of this case. After initially reporting that Mueller's hearings were unprecedented, I learned that a similar hearing was held once before -- in the federal case of Roger Christie, who was tried in Hawai'i and raised a First Amendment religious defense which was rejected. But Christie informed me that his lawyers also raised an Equal Protection argument against Schedule I, and that the judge in his case granted a one-hour evidentiary hearing on the question before denying Christie's motion. I would still characterize the Mueller hearings as historic, given that she was the first to take such a motion seriously, apparently. nwsun's comment echoes a question which has very much been on my own mind: why did she do it? It could be that she really was just trying to be fair and thorough, but with federal dockets at historically overcrowded levels it strains credulity to think that FIVE DAYS of hearings were necessary unless... what? Well, I'm beginning to formulate an answer, and I'd love your opinion on it: she's setting up Pickard et al to win at the 9th Circuit. As you quite correctly mention, her stance on the facts of the case put us on solid ground at the appeal phase -- all we have to do is persuasively argue for a more stringent standard of review and we win. Just what exactly that will mean is unclear (you're quite right that this isn't a rescheduling hearing, and Schedule II cocaine is just as illegal to traffic in without a license), but as a debate in the court of public opinion it could have a strong influence on CARERS and other bills in Washington (she DID say that reform was a job for Congress). While it may seem on first blush to have been more expedient simply to rule for the defense in the first place, under that counterfactual I'm not sure the appeal, which was pretty much inevitable in any case, would have been set up so neatly. Now, instead of an appeal to the 9th from an "activist pot judge" from California, we have an appeal from an "impartial" judge who did a very thorough job setting up the factual record to be unassailable. Now the only issue is the standard of review. About that. I'm rather flabbergasted that she dismissed the strict scrutiny argument based on the Cleburne case so offhandedly. The 9th Circuit, I surely hope, won't be so flippant about a policy which is enforced to gross racial disparities in practically every corner of the nation.
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Apr 16, 2015