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| 2 minutes read

Justice Thomas weighs in on federal cannabis policy

Friends, Monday’s U.S. Supreme Court news made me stop and wonder whether Justice Clarence Thomas reads these Cannabis Musings. Indeed, mere days after my missive about the mixed marijuana messages from the federal courts (link), Justice Thomas, as you’ve probably read by now, issued a striking and notable statement on Monday regarding the denial of certioriari in Standing Akimbo, LLC. et al. v. United States, another 280E tax challenge. (link)

First, some background. When a federal district (trial) court decision is appealed, the case is heard by a federal circuit (appellate) court. Circuit court decisions are then appealed to the Supreme Court, but the Supreme Court doesn’t have to hear the appeal (four of the nine have to agree to hear the appeal). The appellant files a petition for writ of certiorari (or “cert”), trying to persuade the Supreme Court to take the appeal. As I noted last week, the chances of that happening are quite slim. (link)

When the court denies cert, which happens nearly all of the time, it’s almost always done without explanation; however, justices will sometimes comment on the denial, usually because they wanted the Court to take the case. and so take advantage of the platform to state their views on the case. In other words, it can be a tool for a justice to send a message to the lower courts (and everyone else who’s paying attention) what’s in their head. Such statements can be a warning signal, encouragement, or, well, mere musings.

Justice Thomas issued a six-page statement on the state of federal cannabis policy, concluding that a “prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal ap­proach.” Focusing on the “disjuncture between the Government’s recent lais­sez-faire policies on marijuana and the actual operation of specific laws,” the statement describes a “willingness to often look the other way on marijuana is more episodic than coherent”. I won’t go through the entire statement here – it’s worth reading in its entirety – but it’s a fairly audacious statement, not only challenging the Court’s prior decision from 2005 affirming Congress’ authority to regulate the local cultivation of cannabis under the Commerce Clause (the main point of the statement), but also accurately describing the current state of affairs with which the industry grapples on a daily basis.

Okay, so what does all this mean? Well, from a practical perspective, bupkes. Justice Thomas’ statement doesn’t do anything other than make a bunch of cannabis commerce clause aficionados squeal with delight. It doesn’t change the law. It doesn’t give the appellants any further rights. It doesn’t make in-state cannabis legal. Additionally, the statement doesn’t come as much of a surprise - Justice Thomas has had it out for the Court’s approach towards granting Congress broad Commerce Clause authority for a long time (link), and that’s at the heart of this statement.

On the other hand, it’s still kind of amazing (I tried to think of a better descriptor, and failed) to see a Supreme Court Justice call out the federal government on cannabis: “Once comprehensive, the Federal Govern­ment’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the un­wary.” Like I said, it’s almost as if Justice Thomas has been reading my Musings these past three years. Almost.


cannabis, justice thomas, supreme court

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