The recent decision by the US Supreme Court to refuse to hear a challenge to the Colorado marijuana legalization law was a significant victory for those who favor legalizing marijuana and a significant set-back for those who thought the federal courts might help them hold on to the increasingly unpopular policy of criminal prohibition. The name of the case was States of Nebraska and Oklahoma v. State of Colorado.
First, here’s a brief lesson in Supreme Court jurisprudence. Nearly all cases that make it to the US Supreme Court have managed to work their way from the US District Court to the US Court of Appeals, and then, finally, if the court decides to hear the case, to the high court itself. This is a process that usually requires a few years to reach a final conclusion.
The Supreme Court also has what is called “original jurisdiction” to hear cases and controversies arising between the states. One state may petition the court to hear a suit against another state without having to start at the trial court level. Typically these “original jurisdiction” suits involve disagreements over boundaries or the use of river water that flows from one state to another.
This is the procedure attempted when the state attorneys general from Oklahoma and Nebraska, in late 2014, filed suit against the state of Colorado, challenging the validity of the Colorado marijuana legalization law.
Specifically, Oklahoma Attorney General Scott Pruitt, a Republican, and Nebraska Attorney General Jon Bruning, also a Republican, alleged that marijuana from Colorado was finding its way illegally to their states, causing their courts, law enforcement agencies and jails to be overburdened. “The State of Colorado has created a dangerous gap in the federal drug control system,” the two states complained in their lawsuit.
“The state of Colorado authorizes, oversees, protects and profits from a sprawling $100-million-per-month marijuana growing, processing and retailing organization that exported thousands of pounds of marijuana to some 36 states in 2014,” they said. “If this entity were based south of our border, the federal government would prosecute it as a drug cartel.”
Attorneys for both the state of Colorado (Colorado Attorney General Cynthia Coffman, a Republican) and the Obama administration urged the Supreme Court not to accept the case, saying it was not a conflict between the states and thus not eligible for “original jurisdiction.” They argued the case involved harm allegedly being caused by individual lawbreakers, not the state of Colorado.
“Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction,” U.S. Solicitor General Donald Verrilli Jr. wrote in his brief to the court.
On March 21, the Supreme Court announced they would refuse to hear the case on a 6-2 vote (four votes are required for the court to agree to hear a case), with Justices Clarence Thomas and Samuel Alito in the minority.
The decision to reject the case on original jurisdiction does not resolve the underlying substantive issues, but it means the two states, if they wish to pursue this line of reasoning further, must first file their suit at the trial court level and work through the court of appeals, before again asking the Supreme Court to rule. There will be no legal short cut for this challenge.
What if the Plaintiffs Had Won?
It is worth considering for a moment what the plaintiffs might have achieved had they convinced the Supreme Court to hear the case, or further convinced the court their legal challenge had merit.
The result, instead of forcing Colorado to re-criminalize marijuana, would have invalidated only the laws licensing and regulating the commercial cultivation and sale of marijuana. It would have left the state with a law that legalizes the possession and transfer, for no remuneration, of one ounce of marijuana, and the cultivation of up to six plants. However, there would be no legal market where consumers could obtain their marijuana or marijuana seeds — a version of full decriminalization without the benefits of a regulated market.
From a consumer standpoint, that is far superior to prohibition, but from a public policy perspective, it allows the black market to flourish instead of bringing it above ground where it can be regulated. In fact, that is precisely the system in place in Washington, DC, because Congress has blocked the city’s attempt to establish a legally regulated market.
One doubts the plaintiffs would have liked that outcome, but apparently they were willing to accept it rather than acknowledge the benefits of a regulated market.
Why Attempt Such a Strange Legal Challenge?
The actual, on the ground experience with full legalization in a few states has provided an enormous political advantage to the legalization movement. We are no longer limited to theoretical arguments regarding how legalization might work or whether the change from prohibition to legalization would include some harmful, unintended consequences. Now we have actual data, the vast majority of which is positive and reinforces the advantages of a regulated market.
I presume these anti-marijuana attorneys general from Nebraska and Oklahoma understood that each month that goes by without “the sky falling” in Colorado (and now Washington, Oregon and Alaska) moves the country a little closer to ending prohibition altogether, and they were willing to try this novel legal theory – the legal equivalent of a “hail Mary” pass in football –to stop these legalization experiments as soon as possible.
This was an example of two state attorneys general using the legal system for political street theater. They likely expected it would fail, but thought it would improve their credentials as anti-marijuana zealots.
It was also an admission that our opponents are losing the crucial fight for the hearts and minds of the American public. They sought to have the federal courts intervene, rather than take their case to the American public, who have become increasingly skeptical of the war on marijuana smokers.
A majority of the high court saw through this ruse and refused to play. Initially, we feared that when Justice Scalia was still on the court there might be four members of the court who would vote to hear the case. As it turned out, even with Scalia’s presumed support for the petition, the court would have refused to hear the case by a 6 to 3 decision.
Fortunately, their strategy failed, and these two state attorneys general are left with egg on their faces and no choice but to either drop their challenge, which is unlikely, or begin the slow process of testing their novel legal theory, first at the trial court level, and then years trying to get back to the high court. By the time their challenge might reach the Supreme Court, if it ever does (the court receives approximately 8,000 petitions for certiorari each year, and accepts only around 80 of those to hear, or 1%), we should have many more states in the legalization column and even stronger public support for totally ending marijuana prohibition. Their legal theory would still be a loser.
The Courts Will Not Likely Resolve This Issue
Those of us who favor legalization have had to accept the fact that, with one exception (the Alaska Supreme Court, back in 1978, declared their state anti-marijuana law unconstitutional based on the right to privacy provision in their state constitution), the courts, both state and federal, have rejected attempts to overthrow prohibition on Constitutional grounds, forcing advocates to resort to the use of voter initiatives and state legislation, to move legalization forward.
Because marijuana smoking is not considered a “fundamental right,” all the state has to demonstrate to uphold its anti-marijuana laws is a “rational basis” for the law – that it is rationally related to a legitimate governmental interest.
With this latest rejection by the Supreme Court, our political opponents will have to wage their fight to continue marijuana prohibition via defeating proposed state legislation or voter initiatives. The courts are not going to resolve this issue.
Ultimately, a majority of the American public will determine marijuana policy at both the state and federal level. With majority support for legalization nationwide, that bodes well for our side.
This column was first published on Marijuana.com.