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Scalia's Death Clouds US Supreme Court Decision on Colorado's Legal Weed

The court is about to decide if it will hear a lawsuit that Nebraska and Oklahoma filed against Colorado's legalization of marijuana, but Scalia’s death changes the dynamics of whether the court will weigh in on the issue.
Samples of marijuana sit on the counter at the Denver Discreet Dispensary in Denver, Colorado. (Photo by Bob Pearson/EPA)

In October 2014, a high school student in Boulder, Colorado asked Supreme Court Justice Antonin Scalia for his thoughts on her state's decision to legalize marijuana for recreational use in direct contradiction of federal drug laws. Scalia cracked a smile, then hinted that Colorado's law might not be allowed to stand if it ever reached the Supreme Court — at least if he had anything to say about it.


"The Constitution contains something called the Supremacy Clause," Scalia said, referring to a provision that says state laws are trumped by federal ones. He declined to elaborate, saying that speaking further would force him to recuse himself later.

On Friday, the Supreme Court will decide whether to hear a lawsuit that Nebraska and Oklahoma filed against Colorado over its legalization and regulation of marijuana, but Scalia won't be around to participate in the decision. He died on Saturday at a West Texas resort at age 79, leaving behind an outsized legacy as a polarizing conservative legal scholar, as well as many questions about how America's highest court will operate until his replacement is appointed.

Scalia's death will likely affect several divisive, high-profile cases that are currently pending before the court — including ones that deal with abortion, unions, voting rights, affirmative action, and immigration — but marijuana activists and some legal experts are paying particularly close attention to Nebraska and Oklahoma v. Colorado.

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Because the lawsuit was filed directly with the Supreme Court, no lower court has ruled on its merits. If the justices decide to take the case, they could deliver a ruling that invalidates the recreational and medical marijuana laws adopted by 23 states and Washington, DC. They could also uphold Colorado's law, setting a precedent that allows state-level legalization to continue on sturdier legal ground, or decline to hear it and allow the status quo to continue.


Experts say that Scalia's death and the fierce political fight to determine his replacement changes the dynamics of whether the court will decide to weigh in on the issue legal weed. It also raises a thorny question about what would happen the justices take the case and end up deadlocked in a 4-4 tie with no lower court ruling to fall back on.

"This is, in many respects, a one-of-a-kind kind of lawsuit with one-of-a-kind kind of claims and a one-of-a-kind moment with the politics over drug law reform," said Douglas Berman, a professor at Ohio State University's Moritz College of Law. "That might make me think the court would be willing to embrace a one-of-a-kind resolution."

Berman, who authors the Marijuana Law, Policy & Reform blog, thinks the court is unlikely to take the case, echoing an opinion voiced by several other legal experts who spoke with VICE News. Typically, four justices need to vote in favor of accepting a case, but the fact that Nebraska and Oklahoma requested to file their lawsuit directly in the Supreme Court raises an issue of jurisdiction, which means it would take five votes to agree to hear it. (US Solicitor General Donald Verrilli Jr. filed a brief with the court in December arguing that the suit represents "a substantial and unwarranted expansion of this Court's original jurisdiction.")

If the court agrees to hear the case and then splits 4-4 on a ruling, the suit would be dismissed for want of jurisdiction.


Berman said Scalia would likely have pushed for the court to hear the case.

"His past comments and Scalia's own strong personality and seeming affinity to assert that the court has an obligation to be a part of any big national issue, which this clearly is, had me thinking that the court might take the case up," Berman said. "Now that's fraught with all sorts of uncertainty."

Republicans in the Senate have vowed to block anyone that President Barack Obama nominates to replace Scalia until a new president is in office, and the political landscape regarding marijuana could change significantly between now and then. Several states — including California, Nevada, Arizona, and Maine — are expected to vote on recreational marijuana proposals in November, and Democratic presidential candidate Bernie Sanders has called for removing marijuana from the federal list of controlled substances, which would clear the way for nationwide legalization.

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Berman expects the political tension to influence the court's decision.

"Any shrewd observer inside the court or outside the court needs to fully realize that the dynamics around this are going to change perhaps very radically in November," he remarked. "Even if they accept [the case], they need time for briefings, and arguments would need to be scheduled. They wouldn't be able to render a decision before that November change of reality."


Oklahoma and Nebraska filed their lawsuit against Colorado in December 2014, alleging that the state's legal weed is spilling across their borders in violation of federal law. The lawsuit doesn't seek to force Colorado to outlaw cannabis again, but rather seeks to do away with the regulatory system Colorado has created to tax and control recreational pot sales.

Alex Kreit, an associate professor at the Thomas Jefferson School of Law, said it would be "a big, big deal and a big surprise" if the court decides to hear the case. He noted that if they do hear it and strike down Colorado's law, it could lead to a scenario where weed is still technically legal, but the state won't be able to tax or regulate it.

"It would throw things in a real state of chaos. It wouldn't say the state has to criminalize, it says the state can't regulate," he said. "It would be the Wild West, where the state can't be forced to criminalize it, but there's no law to keep it in check."

Though Scalia's remark in Colorado in 2014 implied that he would oppose legal marijuana, Sam Kamin, a professor at the University of Denver's Sturm College of Law, said that there was no guarantee that Scalia would have voted to strike down Colorado's law.

"He was generally not a fan of the federal government and its power, so that would lean him toward allowing more latitude toward states like Colorado, but he wasn't exactly a libertarian, so he might be more sympathetic to federal efforts to decide what happens in people's homes and bedrooms," Kamin said. "Either side can point to something that says, 'Aha! If only we had Scalia that would be one more vote for our side.' "


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Scalia authored a concurring opinion in Gonzalez v. Raich, a 2005 case that upheld the federal government's authority to bust medical marijuana patients even if they abide by state laws. But he also issued a pro-pot ruling in 2013 when he wrote a majority opinion in a case that said police aren't allowed to lead a drug-sniffing dog around a citizen's house without a warrant, and another one in 2001 where he said the cops needed a warrant to use a thermal imaging device to look inside the home of a suspected marijuana grower in Oregon.

Those cases concerned the Fourth Amendment's limitations on search and seizure, however, not the delicate interplay of federal and state law.

Kamin said that the shorthanded justices are unlikely to hear the case in part because of their already daunting workload. But if they do take it and the outcome is a 4-4 deadlock, the situation would be virtually unprecedented.

There have been 164 rulings since 1925 in which the court split evenly; all but one of them involved cases that came up through lower courts. In those cases, the ties affirmed the lower court's decision without setting a precedent — an outcome that can have the effect of leaving disagreements between lower court rulings unresolved. But there's no lower court ruling to fall back on in Nebraska and Oklahoma's lawsuit against Colorado in the event of a tie, and no playbook for what would happen next.


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According to Berman, instead of taking the case, the court could appoint a "special master" to investigate the facts of the case, specifically Nebraska and Oklahoma's assertion that Colorado's legal weed is spilling over the state line. The justices could also remand the case to a lower court and revisit the issue later on appeal.

"There are some factual issues and uncertainties about the record. It doesn't make sense to take this up while it's still lurking around," Berman suggested. "If they're going to take it up, it should start in district court."

Marijuana advocates are rooting for the court to take that stance and dismiss the case, which would allow the current gray area between state and federal law to remain in place while voters and legislators decide the issue, or until another lawsuit works its way through the courts. Tom Angell, the founder of the group Marijuana Majority, said striking down Colorado's law would "put the gains we've achieved to date as well as future gains in jeopardy."

But he also noted that a ruling against Colorado could conceivably set a precedent that allows states to sue over the activities of their neighbors — a blow to states' rights that might have rankled Scalia.

"I think conservatives probably want to be wary in hoping the court takes the case," Angell said. "If you're able to do this on marijuana, maybe California could sue Utah for its relatively lax gun laws. It could be that people who are hoping the court takes the case end up regretting it."

Follow Keegan Hamilton on Twitter: @keegan_hamilton