Scalia's death casts uncertainty on major court challenge to legal marijuana

This article titled “Scalia’s death casts uncertainty on major court challenge to legal marijuana” was written by Sam Levin, for theguardian.com on Tuesday 16th February 2016 21.22 UTC

The sudden death of supreme court justice Antonin Scalia has thrown a wrench into one of the most significant legal challenges of marijuana legalization in the US.

The death of the staunch conservative judge on Saturday could be a boost to advocates of legal pot in Colorado – which is facing a potential threat at the supreme court. But legal experts say the only thing that’s certain is that the unexpected vacancy has created even more uncertainty in an already unpredictable case scheduled for discussion this week.

In 2014, Nebraska and Oklahoma filed a lawsuit against neighboring Colorado, requesting that the supreme court strike down the state’s historic initiative that voters approved in 2012, legalizing recreational marijuana.

The two states alleged that “Colorado has created a dangerous gap in the federal drug control system” and that “marijuana flows from this gap into neighboring states, undermining [existing] marijuana bans, draining their treasuries, and placing stress on their criminal justice systems”.

Because of the unique nature of the interstate legal challenge, the complaint went straight to the supreme court, which is on track for a conference on Friday to determine whether justices will take up the case. If four justices vote in favor of hearing the case, then it would move forward, which could have major implications for states that have already legalized marijuana and others now considering it.

Unlike key cases involving abortion, immigration, guns and the environment, the direct impact of Scalia’s death on the marijuana challenge remains to be seen. That’s partly due to Scalia’s unclear stance in the complex and overlapping legal debates of states’ rights and drug regulation, but also due to questions of whether the supreme court should be hearing this case in the first place.

“[Scalia]’s generally a proponent of states’ rights. But when one state is suing another, it’s hard to know what that means,” said Sam Kamin, Vicente Sederberg professor of marijuana law and policy at the University of Denver. “It was uncertain before – and much more so now.”

Legal experts and marijuana advocates pointed to several cases and past statements suggesting that Scalia may have sided with Nebraska and Oklahoma.

In 2005, in a case called Gonzalez v Raich, Scalia joined the majority opinion, arguing that the federal government had a right to prosecute a woman who grew medical marijuana, even though her actions were permitted by state law and she had not transported pot to other states.

Then in 2014, during a speech at the University of Colorado, when Scalia was asked about the state’s new law legalizing marijuana, he hinted that he believes federal drug laws should trump Colorado’s measure. Declining to elaborate, Scalia said: “The constitution contains something called the supremacy clause” – a reference to the provision that says federal law generally takes precedence over state laws.

But Kamin also pointed to the case of Kyllo v United States in 2001, in which Scalia argued that the federal government engaged in an unlawful search when it used thermal imaging to investigate a suspected indoor marijuana operation in a private home.

Marijuana policy debates aside, there are reasons why the justices, including Scalia, could have been reluctant to hear the case in the first place. They may believe that the states should have filed the case in district courts first, said Robert Mikos, a professor at Vanderbilt law school and an expert on federalism and drug law.

“I don’t think they’re interested in taking this,” said Mikos. “None of them is particularly eager to sit as a trial judge.”

Scalia’s death may be one more reason to avoid taking the case at all, added Kamin. “Given the chaos going on at the moment, I don’t know why the court would put more on their plate.”

Additionally, the US government recently took Colorado’s side in the dispute and filed a brief urging the supreme court not to hear the challenge.

If the case were, however, to move forward, Scalia’s vacancy would mean further confusion moving forward. Typically if there are ties at the supreme court, then the lower court’s decision that is being appealed would go into effect.

But there is no procedure in place for a deadlock in a case like the Colorado one, in which there is no prior ruling and the challenge began at the supreme court. “It really is unchartered territory,” said Kamin.

Supporters of Colorado said they were hopeful that, with or without Scalia, the justices would drop the matter this week and allow the state’s regulated marijuana industry to continue to thrive.

“This is merely a political tactic being carried out by opponents of marijuana policy reform,” said Mason Tvert, director of communications for the Marijuana Policy Project, who helped pass Colorado’s initiative in 2012.

If the justices decline to hear the case, Tvert added: “It would just further strengthen most people’s already existing recognition that states are able to move forward with these types of laws.”

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