The Daily Beast, July 30, 2018
What if I were to tell you that there is a political issue that galvanizes young voters? An issue that unites libertarians, independents, and African-Americans? An issue with bipartisan power, that works not only in cities, but has demonstrated strength in red states like Kentucky and West Virginia?
It’s an issue likely to generate cases to be heard by the Supreme Court in the next decade and one on which the Trump administration’s leading law enforcement official—Attorney General Jeff Sessions—is already on the losing side politically.
Given all that, you would think this issue would be a central part of the Democratic Party’s campaign against Brett Kavanaugh’s nomination for the Supreme Court. You would think wavering Democrats and shaky Republican senators would be targeted on the basis of the threat Kavanaugh poses on this issue.
But because the progressive movement sometimes makes political basics look liking trying to solve Fermat's Last Theorem, you would be wrong.
The issue I speak of is marijuana. And it is likely to be a source of many complicated legal disputes in the coming decade, disputes that will be of increasing salience to American voters and, by turn, the Supreme Court.
In fact, the Supreme Court has already had to deal with some marijuana-related matters. Just a few years ago, it was asked to weigh in on Colorado’s decision to legalize marijuana. Nebraska and Oklahoma argued Colorado’s law was preempted by the federal Controlled Substances Act, and that the court should enjoin Colorado from implementing its law. Nebraska and Oklahoma complained that Colorado’s decision to legalize marijuana “undermin[ed] their own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems.”
On presumably technical grounds, six members of the Court declined to hear the lawsuit, but without prejudice (meaning there was no implication those Justices disagreed on the merits and the states could pursue their theory in the lower courts).
Justice Clarence Thomas, joined by Justice Samuel Alito, dissented from the decision to not hear the case not only on technical grounds, but also by noting that Nebraska and Oklahoma have alleged “significant harms to their sovereign interests caused by another State.” They stated that those allegations were significant enough to warrant the Court’s attention.
That decision was back in 2016. How will Justice Neil Gorsuch (typically an ally of Thomas and Alito) feel when this question comes back to the Court now, as it likely will? How would a Justice Kavanaugh, who most well-informed observers believe is essentially Gorsuch 2.0, feel about it? Would Chief Justice John Roberts feel differently about it with a social-issues moderate like Justice Anthony Kennedy no longer on the Court?
These are important questions, affecting a massive and growing industry that a growing portion of the population supports. And yet, they’ve been completely unasked during this current debate about the future composition of the Court.
That shouldn’t be the case, if only because the core question of whether the federal Controlled Substances Act “preempts” state laws—that is, does the existence of the federal law making marijuana illegal prevent states from enacting contradictory laws on the same subject—remains a reasonable threat to reach the Supreme Court, and one could see the glimmerings of a hard right majority that would make such a theory law.
And a lawsuit by one state against another is hardly the only way the issue of marijuana legalization could come before the Court. For example, private individuals and Colorado, Kansas, and Nebraska law enforcement officers have also sued to challenge Colorado’s legalization of marijuana, even invoking RICO in addition to preemption.
Jeff Hauser runs the Revolving Door Project, an effort to increase scrutiny on executive branch appointments and ensure that political appointees are focused on serving the public interest, rather than personal professional advancement.