Behind closed doors, Supreme Court ponders legalized marijuana challenge

In private conference today, an eight-Justice Supreme Court may decide the fate of a battle between three states over the legalized production and sale of marijuana in Colorado.

The petition in Nebraska and Oklahoma v. Colorado is an original jurisdiction case, where the complaint between the states is sent directly to the Supreme Court, with no lower court involved. The Constitution’s Article III allows the Supreme Court to consider and accept these unusual cases, which usually involve boundary disputes. It says that “[i]n all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.”

The lawsuit in Nebraska and Oklahoma v. Colorado is about the commercial sales of marijuana for recreational use in Colorado. The lawsuit was brought by Nebraska and Oklahoma in December 2014. The two states contend the Supreme Court was the only venue where they could seek relief under the Constitution’s Supremacy Clause, arguing that “the federal government has preeminent authority to regulate interstate and foreign commerce, including commerce involving legal and illegal trafficking in drugs such as marijuana.”

Nebraska and Oklahoma aren’t asking that Colorado’s now-legal personal marijuana use stop or to go back to its previous laws that prosecuted marijuana use as a crime in the state. Instead, the two states want part of Colorado’s plan disallowed that allows for commercial growing and distribution of marijuana with the state.

The case took a delayed path to the Court. Last December, Solicitor General Donald Verrilli filed the Justice Department’s legal opinion, which the Court had asked for on May 4, 2015, just three days after the petition was first considered in private conference.

Verrilli claimed the lawsuit from the two states is problematic on several fronts. For example, Verrilli rejects the two states’ claims that the legalized sale of marijuana in Colorado “increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma” because of increased ability to bring the drug into the two states.” He also believed allowing the lawsuit to proceed would allow states to force other states to conform to federal laws that they interpret them as not being enforced correctly. “Such a broad invitation to invoke this Court’s original jurisdiction to resolve myriad preemption questions would not comport with the Court’s traditional insistence that original jurisdiction be exercised only ‘sparingly,’” Verrilli said.

In January 2016, Nebraska and Oklahoma responded to Verrilli’s comments. “Sending this case down to district court will only perpetuate the legal uncertainties surrounding this pressing national issue and permit Colorado ‘to benefit from any delay attendant to [those] proceedings even if the [legalization] is ultimately found unconstitutional,’” the states claimed. The states also said a lack of trial would nullify the Controlled Substances Act, the federal law that lists marijuana under the Schedule 1 list of drugs, along with heroin and LSD.

Since the states filed their response, the case of Nebraska and Oklahoma v. Colorado has been scheduled for private conference on three dates. There was no action on the case after January 22. The case was on the private conference list for February 19, but that conference was cancelled for memorial services for Justice Antonin Scalia.

The Supreme Court seldom hears original jurisdiction cases. It may accept one original jurisdiction case per term on average. In its last term, the Court ruled on 74 appeals cases and other disputes.

According to the official Federal Judicial Center website, the number of such cases in the “original docket has always been a minute portion of its overall caseload” and since 1960, nearly half have been denied by the Court.

“The Court has generally accepted state party cases dealing with boundary and water disputes, but it has been much less likely to field original cases dealing with contract disputes and other subjects not deemed sufficiently substantial for the Court’s resources,” the Center says.

If the Court does take up the case, it usually appoints a Special Master to gather evidence before arguments are heard. That process could take an extended period of time. For now, the parties involved will be keeping a close eye on the list of official court orders on Monday, to see if any action was taken on granting or denying the case.