It’s not everyday that a Supreme Court justice jokes about weed during oral arguments in a case about a strippers. But that is exactly what happened earlier this week when Justice Elena Kagan reminisced about partying in homes where the familiar smell of marijuana was present.
“There are these parties that, once long ago, I used to be invited to where you didn’t … know the host, but you know Joe is having a party. And I can say that long, long ago, marijuana was maybe present at those parties?” she said.
The quote, first reported by Tom Angell in Marijuana Moment, was made by Kagan while discussing a sordid case involving arrests police made in 2008 when to responding to complaints about illegal activity at the vacant house. The police officers arrived to the scene and found strippers performing before a large crowd.
Here is the issue being heard in the titillating case, District of Columbia v. Wesby, 15-1485:
Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.
During oral arguments, Kagan made reference to the “long ago” bash, although she did not admit to consuming marijuana. But it does illustrate that the friendly herb is readily accepted and available throughout all levels of American life. Kagan, 57, was born and raised in New York City’s Upper West Side. She attended Princeton, Oxford and Harvard Law School.
One childhood friend, Margaret Raymond, recalled that Kagan smoked tobacco as a teenager, but was not known as a partier. On Saturday nights, Raymond told the New York Times, she and Kagan “were more apt to sit on the steps of the Metropolitan Museum of Art and talk.”
Kagan was nominated to the high court by President Obama in 2010 and the Senate confirmed the nomination by a vote of 63–37.
As Angell writes on Marijuana Moment:
Connecting her remarks about being in the presence of marijuana consumption to the case at hand, Kagan said, “It just is not obvious that the reasonable partygoer is supposed to walk into this apartment and say: Got to get out of here. And it seems a little bit hard that they’re subject to arrest.”
The politics of marijuana have shifted considerably since Judge Douglas Ginsberg was forced to withdraw his nomination to the Supreme Court in 1987 after his prior cannabis use was revealed.