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How Will Scalia’s Death Affect Marijuana Case at Supreme Court?

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It’s been much discussed how the death of U.S. Supreme Court Justice Antonin Scalia on Saturday will greatly affect voting rights, abortion policy, campaign finance and even the 2016 presidential election. But it could also have big implications for marijuana legalization.

This Friday, the justices are currently scheduled to discuss the lawsuit that Nebraska and Oklahoma filed against Colorado over its legal marijuana law. Support from four justices is needed to take up the case, and with Scalia’s death the plaintiffs may have just lost one reliable vote.

While it is not known for certain how Scalia would have voted on granting review, or how he would have ultimately come down on the issues at play in the case if the Court did hear it, a look at his record indicates he probably wasn’t a fan of the fact that local businesses in Colorado are selling marijuana in defiance of federal law.

When asked during an October 2014 appearance in Denver about how the federal-state conflict on marijuana laws should be resolved, for example, Scalia said “the Constitution contains something called the Supremacy Clause,” implying that state legalization lacks legal legitimacy. Declining to elaborate further, he added that doing so could “force me to have to recuse myself” if a marijuana case reached the Court.

Two months later, the Court got such a case when two of Colorado’s neighboring states filed suit, alleging that their borders were being overrun by legal marijuana they didn’t want.

While Scalia generally favored states’ rights to act in response to what he saw as federal overreach in areas like gun policy, environmental regulation and gay rights, he appeared to have somewhat of a blind spot with regard to state marijuana laws.

In 2005’s Gonzalez v. Raich case, Scalia’s concurring opinion upheld the federal government’s ability to prosecute a California woman who grew medical marijuana in accordance with state law and did not transport it across state lines:

I agree with the Court’s holding that the Controlled Substances Act (CSA) may validly be applied to respondents’ cultivation, distribution, and possession of marijuana for personal, medicinal use …

In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this.

But Scalia also often sided with criminal defendants in cases concerning police powers, sometimes specifically with respect to marijuana.

For example, in 2013 Scalia wrote the majority opinion for the Court in ruling that police may not lead drug-sniffing dogs around people’s homes without a warrant. Doing so, Scalia reasoned, constituted a search of the home.

“A police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do,” he wrote. “But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that.”

Scalia also wrote for the Court’s majority in a 2001 case that found the government’s use of a thermal imaging device to look into the home of an Oregon marijuana grower without a warrant constituted an illegal search.

“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant,” he wrote.

It is not known if Friday’s conference at which the justices are set to consider the Colorado marijuana case will be rescheduled due to Scalia’s death, or whether action will be taken if the meeting goes forward as planned. The case was also on the calendar for the justices’ January 22 conference, but they apparently delayed consideration for an unknown reason.

If four votes are found to grant review, the case could have enormous implications for states’ ability to set their own marijuana laws under continuing federal prohibition. The Obama administration, which has generally allowed states to implement their own marijuana without federal interference during the president’s second term, has urged the Court not to take the case.

Replacing Scalia on the Court is shaping up to be an immense political battle, with Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley saying that the next president should nominate the next justice. President Obama, however, has pledged to nominate a replacement prior to leaving office.

Until a new justice is confirmed, important cases could be settled in a 4-4 tie, under which circumstances the rulings of lower courts will stand but no national precedent will be set.

But there is no clear procedure for settling ties in cases where there are no lower court rulings, such as the Nebraska and Oklahoma marijuana suit against Colorado, which was brought directly to the Supreme Court.

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