Our Recent Supreme Court Victory and What It Means

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.

Original Jurisdiction

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.

Read more http://www.marijuana.com/blog/news/2016/03/our-recent-supreme-court-victory-and-what-it-means-3/


This column was first published on Marijuana.com.



21 thoughts

  1. One if the reasons legalization is taking so long is a branding issue. Nixon successfully branded “smoking pot” a “hippie” thing to do.

    We need to stop using words like pot, weed, etc (and for God’s sake stop saying dope, the street name for heroin not cannabis!).

    I would go further and remove the imagery of “smoking” too. A large portion of cannabis consumers are eating and vaping only now anyway and cannabis’s aroma when smoked is offensive to some still (especially those who don’t understand cannabis isn’t carcinogenic). So I would avoid saying the word “smoking” like voldemort in the Harry Potter universe.

  2. “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.”

    That sure sounds good to me.

    I’m also bemused to see intransigent, long term drug warriors like Boticelli and his ilk suddenly embracing a treatment-not-incarceration approach as if it’s some new idea for drug policy.

    I’ve seen both Boticelli and the new DEA head (I don’t know his name) equivocate when answering questions on whether marijuana is as dangerous as heroin. The new DEA guy said he was no ‘expert’ while evading the question. Both men should certainly be expected to be sufficiently knowledgeable about drugs to clearly answer the question. Every person over the age of 12 knows the answer to this question.

    IMPORTANT: If your 12 year old doesn’t know the answer, STOP READING this right now and go tell them.

    1. Your important message is spot on! Kids these days have access to information that older adults could not have imagined when we were kids.

      Of course all of the anti-marijuana zealots know the real dangers (next to nothing) of the herb but cling to their foolish ideology nevertheless. They, in many cases, are just outright liars and/or hypocrites. They should be ashamed of themselves. Those that truly believe marijuana is dangerous and should be prohibited are the stupidest among us and should be ignored.

  3. Democracy is merely a concept invented by Plato or somebody. It is just a good idea if it is not implemented. When the people in power are too afraid to live in a democracy, apparently it can no longer exist. I’m sure Prohibition will soon end as it is over the line too stupid to live in this police state we all grew up understanding would be the wrong future.

    The Ninth Amendment (which states that the Constitution doesn’t need to list every “fundamental right”) shouldn’t allow weed Prohibition to even occur because only in a dictatorship is everything “rationally related to a legitimate governmental interest”. Without “Congress shall make no law …abridging … the right of the people … to petition the Government for a redress of grievances” (Amendment 1) and “In all criminal prosecutions, the accused shall enjoy the right …to have compulsory process for obtaining witnesses in his favor” (Amendment 6) and the right to new vices (Amendment 9) the government could make any law to make anything not listed 250 years ago “rationally related to a legitimate governmental interest”.

    Thank you, NORML, for your continued efforts.

  4. @Todd, Total agreement with your post.

    I’ve held this exact view for several years. However, I’m no lawyer, therefore I’ve little respect for the ways of legal eagles.

  5. What’s going to be interesting is how this decision will filter dowhill. Maybe it isn’t really the cort’s business after all. Perhaps the three conference relist is that mabey they found out some things about the CSA that they may not have known: USAG scheduling atority perhaps.

  6. So did they state an opinion on the matter when they rejected it, not sure if they would have since they didn’t rule on the matter but be nice to read the opinion if they did leave one.

  7. Thanks Keith, for keeping us on track as we prepare for the REAL theater, (as opposed to just political theater, as you correctly surmised this case was about)…

    It’s so easy for us to get frustrated with the President and the courts for not taking action and bring justice to our evil federal marijuana policy but in the end its state votes that are going to force disinfecting light into Congress to do their job and challenge the CSAct. (Even though an executive action by the president post elections would be unchallengable in the Supreme court?)

    And the real game changing action is coming from states like Vermont and California, where legislatively and voter-initiated state legalization is going to both tip us over the majority in states that have legalized medically, and provide courts solid reason to deny any more third-party damages for nonsense litigation.

    At this point were just calmly educating our fellow citizens about legalization, spreading our momentum while the prohibitionists scramble like cockroaches. What a great time in marijuana history!

    1. Perhaps even more coveted a power of the presidency than any executive privilege to control drug policy through the CSAct is the next president will face 8 years with one of the oldest line ups of a Supreme Court in American History. Look at Ginsberg and Thomas; they need some good weed to make it through another 8 years!
      In lieu of our Supreme court justices taking on regular consumption of marijuana, the reality is the next president of the United States will be replacing much more than Scalia, but perhaps up to 7 out of 9 justices! That would change the balance of the Judicial branch for at least an entire generation!

      Incidentally I picked this up on Youtube, and every black person in America needs to see this presidential assesment before they vote;


      He called Hillary the “Milli Vanilli” of politics! Classic!
      Vote AUMA!
      Vote Sanders!

      1. I don’t know what this means. However, the DOJ just reinstated the “Equitable Sharing Program”. That means that asset forfieture is back on full trhottle. I’m not putting any faith in any last minute decheduling by the Obama administration. In fact, I have $20 down that Obama’s AG won’t be making any last minute decissions on CSA sheduling. Any takers?

      2. I wouldnt bet my best weed on it Raven, but you are proooobably right… From The President’s perspective there is plenty of intimidation from the DOJ, in part due to infiltration of the Secret Service by the DEA collusion with the Colombian cartel. But also, the CSAct acts like a catch 22 for any President… Congress wrote the CSAct infection to usurp legislative authority from the legislative branch to the executive. Presidents can’t get sued during office, and enjoy limited protections from prosecutions post-presidency, but there is real concern that Congressional investigations or law suits after an executive order could slow down the little progress were making with an obstructionist Republican Congress in power.

        And to concede I was merely postulating on what I rather Wish the President would do than what he probably Will do… here’s another fact to consider; it didn’t take long for President Obama in office to get into his first corruption scandal due to the CSAct of 1970 (and a little known law passed during the 80s that allows only the ATF to register and track the serial numbers of all firearms in the United States… Yeah… Like THAT power won’t create a rogue cartel within the DOJ…)

        Obama already had to call executive privilege from Congressional investigation during the infamous Fast and Furious scandal when the ATF was caught selling weapons to Mexican cartels in Arizona (“It was a tracer program,” said one ATF agent, “we wanted to see where the guns would end up,”) They would End up killing thousands of people, of course.

      3. (Sorry Raven, we’ll have to continue our conversation on another post…)
        …Assuming what? You, the ATF, would catch El Chapo making some gun manufacturer PROFIT selling him Weapons??? 6 years later and were still finding those assault weapons (some directly from El Chapo’s capture, no thanks to the ATF)… high powered semi automatic rifles which killed thousands of innocent Mexicans and extorted central American immigrants, and a DEA agent (on vacation outside Mexico City found dead in full kevlar… But yeah, he was on “vacation…”) Worse, the F & F program never ended up being the cause of El Chapo’s capture (which is always a closed door deal between our cartel, the DOJ, the corrupt foreign government$ and the foreign drug lords themselves, with the intention to turn captured foreign nationals into informants and split up the asset forfeitures between each group and agency).

        So coming from THAT perspective, we better go lobby our Congressman, as I fear you are correct Raven… Lets not hold our breath for any more than what President Obama has already done, which thankfully, has been to mostly stay out of the way.

      4. Nope, too risky! At this point, I would be surprised if the Obama administration descheduled, or even rescheduled, cannabis.

        While President Obama is no foaming-at-the-mouth drug warrior (and that’s a good thing), he’s never been willing to commit much political capitol on cannabis legalization. We may have gotten just about all we can expect from him.

        Still, we’ve come a long way under Obama. I voted for him twice, and don’t regret it for one second.

        And, Applause for Obama, by the way, for recently pardoning some more non-violent drug war prisoners! Could he do more? Sure. But to these specific individuals, I’m sure it’s a very big deal, and I’m very happy for them, and I am proud that our President is showing humanity and compassion. Not particularly valued traits these days, it seems!

  8. This article made my heart glad.

    The paragraphs in particular that game me a definite sigh of relief were:

    “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.”

    Even tho this decision (non-decision) by the Supremes apparently was a given, a slap down of the two attorneys generals’ “political street theater,” I’m still so relieved the outcome went our way.

    I believe that even if only a couple more states end up legalizing this year, it will strengthen our cause immeasurably. If California is one of those states . . .

  9. Call me naive, but I still have trouble understanding the mindset of the two Attorney Generals in question here, and by extension, a hell of a lot of other people, too.

    Keith reasonably assumes they did it to burnish their “anti-marijuana zealot” credentials; but then, why the hell would anyone want to do that?!

    Some folks actually believe cannabis is an evil to war against, and others undoubtably know better, but do it for the money. Okay. But, still… so many of them? That’s still hard for me to understand really, and I find it creepy.

    It’s great to be here at the “speakeasy”, among friends! Let’s fire one up, people!

    Like the Black Crowes song “Soul Singing”, “we’ll get high, and we’ll feel safe and sound! It comes around!”

    1. $herrif’s Association$
      A$$et forfeiture$
      Federal drug grant$
      Campaign contribution$
      Private pri$on$
      Private Adoption Collu$ions
      $tate $pon$ored terror from the DHH$
      The $pecial Operation$ Division of the DEA
      Us Patent$ like 6630507
      Corn $ub$idie$ v$ hemp $ub$idie$
      Fine$ and fee$ from local court$
      Koch brother$ petrochemical$ v$ hemp oil$
      Heroin and opiate war$
      Black market cartel$
      The DOJ collu$ion

      The Controlled $ub$tance$ Act

      1. These all fall into the “does it for the money” category, as your $$$ characters suggest very clearly. And I concur.

        But here’s what’s creepy to me: many of these items are entities and ideas and things, as opposed to actual, living, breathing, blood-in-their veins human beings.

        And even where we are talking about real people, as in “Pharmaceutical$”, and while the pharmaceutical industry at large may oppose legalization of cannabis, still it’s hard to believe that each and every PERSON who works in or for the pharmaceutical industry PERSONALLY opposes the legalization of cannabis.

        And so this list of corporations, associations, ideas, things, concepts, and systems has (apparently!) more power over human beings than actual human beings themselves! And all of this fueled by The Almighty Dollar.

        I find that extremely creepy. Ideologies are scary things. There are forces that exist in society that are not human, but not supernatural either; they keep us as slaves, they tell us what to smoke (tobacco, legal but deadly), and what not to smoke (cannabis, illegal, but safe and good for you.) They are Situations and Systems that cause people to do things that they oppose morally, in the sense that they are a part of that system.

        It’s almost like demonic possession, except I don’t believe in the supernatural. But the natural form of evil has been just as effective at spreading lies and ruining lives.

        Just saying. Creeps me out sometimes, what we’re up against.

        But we’re winning, so right on!

      2. Mark, a good government teacher once told me,
        “Real people work for the government.”

        It is our role as participants of a Democratic government to engage these real people and change our environment.

        Citizen lobby. You won’t regret it.

  10. The city of Lancaster, Pennsylvania, won’t consider marijuana decriminalization like Philadelphia and Pittsburgh have done because its politicians and civil servants won’t serve the public by doing what is right but instead are slave to the state’s cannabis prohibition. It’s that argument that there are international prohibitionist treaties we must abide by, and that’s why we can’t legalize it at the federal level, and blah, blah, blah all the way down the line.


    Snippet 1: Mayor Gray said while perhaps it’s time to look at decriminalization, that’s something that should happen at the state level, not locally.

    Snippet 2: [Chief of Police] Sadler has practical concerns.

    “I think you have to be very careful when you decriminalize something that’s not decriminalized in other places” — meaning municipalities, he said.

    That could lead, he said, to someone elsewhere thinking: “If a little bit of marijuana’s OK, well, a lot should be OK, too.”

    “For laws to be consistent,” Sadler said, “it should be done at the state level.”


  11. What kind of logic is that statement from the Lancaster Chief of Police?

    “If a little bit of marijuana’s OK, well, a lot should be OK, too.”

    Let’s plug in the numbers that could be stipulated in the decriminalization. If a 30g of marijuana’s OK, well, a lot should be OK, too. What? What he should have said was probably something along the lines of If a little bit of cannabis is OK in Lancaster, people could think it’s OK in municipalities outside the city where it won’t be. Something like that maybe.

    I thinking, is their saying decriminalization ought to be done at the state level STALLING or is it Support, even Pressure, on the state legislature to take the next step and legalize adult recreational or some kind of decriminalization. If the state makes prosecuting any kind of cannabis offense not involving minors and public nuisances the lowest priority statewide and no public time or money or resources allowed to be spent on cannabis prohibition, I might bite at that. That would be a laissez-faire way of putting adult recreational on the fast train, but still not regulated, it’s all still underground and in the black market. Public safety concerns require legalization. I mean, what the hell? Why not? The same outlets sell medical marijuana products that the state has legalized as sell adult recreational. It’s just that the MMJ products are tax-free.

    It’s just the opposite of this Daily Chronic article.


    Here’s an article from The Cannabist about Pennsylvania’s pathetic medical marijuana law. It’s better than nothing, but that’s about it.


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