Wednesday, June 27, 2018
With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?
The Supreme Court generated a lot of news today, in part by reversing a significant precedent concerning labor unions and in part through Justice Antony Kennedy's retirement announcement. So what does this have to do with marijuana law, policy and reform you might ask? And I would answer with one case cite: Gonzales v. Raich, 545 U.S. 1 (2005) (opinion here, wikipedia entry here).
Raich is the case in which all the liberal members of the Supreme Court all rejected the claim by Angel Raich that the federal government should not have the constitutional power to criminalize her backyard cultivation and use of medical marijuana in compliance with California law. Of course, the liberal members of the Court were not the only ones who rejected Raich's claim that the Commerce Clause should not be read to allow the federal government to criminalize what she grows in her own backyard: joining the liberals voting in favor of broad federal power here were Justice Antonin Scalia (now deceased) and Justice Anthony Kennedy (now about to retire).
Based on a number of his opinions to date, there are lots of reasons to suspect that new Justice Neil Gorsuch, who replaced Justice Scalia, would be a vote for the Angel Raiches of the world against broad federal power. In addition, there are lots of reasons to suspect that whomever Prez Trump selects to replace Justice Kennedy will also be an advocate for limited federal legislative powers. (This accounting alone does not make obvious that Raich could be overturned, as Justice Samuel Alito might be more a fan of broad federal criminal powers than was the Justice he replaced, Justice Sandra Day O'Connor. It is also unclear where Chief Justice John Roberts would come out on these issues, too.)
Personnel change is the main reason I am inclined to suggest a "new" Supreme Court might be inclined to reconsider Raich, but I am also eager to highlight how changing political, social and medical knowledge may also incline the Court to reconsider a past ruling. Changes circumstances are always a formal and informal influence on the strength of stare decisis, and gosh knows there have been a whole lot of changed circumstances in the marijuana space since Raich was decided in 2005.
So, put simply in the form of a call to Raich's lawyer, where is Randy Barnett when marijuana reformers need him?