The death of Supreme Court Justice Antonin Scalia on Saturday is already having far-reaching repercussions in American politics. So how will his death impact marijuana law? This is far from an absurd question: A pivotal lawsuit filed by Nebraska and Oklahoma to overturn Colorado’s legalized marijuana program is scheduled to be considered by the court this Friday. Scalia’s missing vote could change the fate of a case that has the potential to dismantle the country’s nascent legalized market. And thanks to the unique nature of the case, how the Supreme Court deals with the lawsuit in the absence of a ninth judge could have a lasting influence on the court’s procedures.
Filed in December 2014 by the attorneys general of Nebraska and Oklahoma, the lawsuit in question asks the Supreme Court to overturn Colorado’s 2012 law legalizing marijuana, arguing the neighboring states have faced increased criminal activity and other problems thanks to marijuana arriving from Colorado. The lawsuit also says Colorado’s marijuana program violates the Supremacy Clause of the U.S Constitution, which states that federal law — in this case, the prohibition of marijuana — takes precedence over state statutes. That means that if the Supreme Court agrees with the plaintiffs on this matter, medical and recreational marijuana regimes not just in Colorado, but all over the country, could be invalidated.
“It has the potential to be a big deal,” said Sam Kamin, marijuana law professor at the University of Denver. “Conceivably it could mean that the court finds that Colorado’s and every other state’s regulations of marijuana [are] preempted by federal law and have to be annulled or repealed, or can’t be enforced.”
A victory for the plaintiffs could also reverberate far beyond marijuana policy. Many believe such a decision would be a major blow for states’ rights, which is why many conservative colleagues of the Republican attorneys general behind the suit are vocal critics of the effort. Plus, using the same legal arguments, the attorney general of, say, California could sue Utah over its lax gun laws, arguing too many firearms are flowing into the Golden State.
Kamin, though, has long believed the lawsuit against Colorado has little chance of succeeding. “I’ve always thought the court isn’t going to take it or dismiss it for lack of standing,” he said. “The plaintiffs can’t show they could be helped by a positive decision in their favor.” Even the U.S. government takes a dim view of the case; in December, the solicitor general urged the Supreme Court to deny the lawsuit.
Many cases with shaky legal standing never make it to the highest court in the land. But the Supreme Court has to weigh in on this matter; it has exclusive jurisdiction over lawsuits filed by one state against another. If four judges vote to take up the case at the hearing this Friday, the lawsuit will move forward.
How might Scalia have impacted this decision? Would he have been for or against the legal validity of Colorado’s marijuana program? On one hand, the conservative justice was known as a staunch supporter of states’ rights when it came to issues such as gun control and gay rights. He was also known to be critical of law enforcement overreach, including in marijuana cases. In a 2001 case, he concluded in the majority opinion that the use of thermal imaging devices in a marijuana bust constituted an illegal search without a warrant. He came to the same conclusion about drug-sniffing canines in a 2013 cannabis case.
But that doesn’t mean he was supportive of state marijuana laws. When he was asked about clashes between state and federal laws over marijuana during a visit to Colorado in 2014, he responded: “The Constitution contains something called the Supremacy Clause,” potentially indicating he believed federal law trumped state efforts. And in the 2005 case Gonzalez v. Raich, Scalia concurred with the majority opinion that a California medical marijuana patient could be prosecuted by the federal government, noting: “I agree with the Court’s holding that the Controlled Substances Act (CSA) may validly be applied to respondents’ cultivation, distribution, and possession of marijuana for personal, medicinal use.”
“It’s hard to predict where a given justice is going to come down on anything,” said Tom Angell, founder of the cannabis advocacy group Marijuana Majority, who analyzed Scalia’s record on cannabis for Marijuana.com. “But my best guess is Nebraska and Oklahoma probably just lost one of their votes for granting the review.”
Even without Scalia’s vote, it’s possible four justices will agree to move forward with considering the lawsuit. If that happens, the Supreme Court could be looking at a far more complicated scenario. With the political landscape suggesting a ninth justice won’t be approved to replace Scalia anytime soon, it’s possible the case could end in a 4-4 tie. Usually that means the lower court decision being appealed stands, with no national precedent. But in interstate lawsuits, there are no lower court decisions. So what happens then?
According to a 2009 article in the Yale Law Journal, the Supreme Court has only had to deal with so-called original jurisdiction deadlocks twice in its history. The first time, in 1870, the case remained up in the air for nearly three years. The second time, in 1953, the court ruled one way, only to overrule itself a year later. “Unfazed by this troubled past,” notes the Yale Law Journal article, “the Court remains unprepared for future [original jurisdiction deadlocks].” In other words, no one knows exactly what will happen if the Supreme Court takes up the Colorado lawsuit and then can’t come to a majority opinion on it.
One option, notes the Journal article, could be that the deadlocked case remains unresolved, similar to the 1870 case, until a majority decision emerges, either through the appointment of a ninth justice or someone changing sides. Another option, according to the article, would be that a tie vote “leaves the preexisting legal landscape intact,” meaning Colorado’s marijuana law would stand. A final possibility could be that the court appoints a “special master,” or legal expert, to consider and issue recommendations in on the matter.
No matter which option the Supreme Court embraces in the event of a deadlocked vote on Colorado’s marijuana program, it could have lasting legal consequences. Kamin, however, believes the Supreme Court won’t have to consider any of these options; he says the complicated nature of considering such a case, plus all the hot-button issues that were already on the docket to be considered this term, make it unlikely the court will take up the lawsuit at all.
“There is so much very, very high-profile stuff on pause right now, my gut instinct is they are going to say, ‘We don’t need anything else on our plate,’ ” he said.
If the justices decide otherwise, however, the effect could shape both marijuana law and the Supreme Court for a long time to come.