Thursday, September 28, 2023

Which Way Will Supreme Court Nominee Brett Kavanaugh Rule On Marijuana?

With the nomination of Brett Kavanaugh for the Supreme Court, Americans are rife with speculation on how he feels about cannabis. Kavanaugh has never ruled directly on cannabis matters.

Democrat Jeff Hauser wrote a meandering op-ed in the Daily Beast, which said in part that the obvious way to trump the POTUS’  Supreme Court nominee Brett Kavanaugh, is for Democrats to focus on Marijuana. “Democrats have a potent card to play against Brett Kavanaugh,” wrote Hauser, “So why aren’t they playing it?”

Hauser’s argument, however, is unsubstantiated. Which way Kavanaugh would lean as a Supreme Court Justice regarding marijuana is anybody’s guess.

The U.S. Constitution is the prism by which Kavanaugh reflects his legal interpretations. The constitution does not say anything about marijuana, which was legal until 1937, when the  Marihuana Tax Act was passed, beginning prohibition.  As a strict constitutionalist, he should be of the opinion that marijuana laws should be left to the individual states to decide.

The 10th Amendment to the constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 10th Amendment was included in the Bill of Rights to further define the balance of power between the federal government and the states. In a nutshell, if a law is not in the constitution, it is up for the individual states to decide. Hence, medical and recreational marijuana legalization.

Kavanaugh is a strict constitutionalist, but he is also likely to support the FDA.  The FDA recently approved Epidolex, after years of stating that marijuana had no medicinal value. If the FDA changed their tune, will Kavanaugh follow suit? These variables should factor in while predicting which way Kavanaugh will rule on cases that involve cannabis.

A 2007 case in which he sided with the majority, holding that the US Constitution does not provide terminal patients a right to try experimental drugs with limited clinical trials that haven’t been proven safe and effective;

A 2012 case A 2012 case in which he wrote a dissent to the majority decision – which was declared unconstitutional on Fourth Amendment grounds a random drug testing policy of all employees of a federal agency regardless of their responsibilities and requirements of their position;A 2013 case in which he penned the opinion that deferred to FDA discretion/oversight, stating that “courts must be careful not to unduly second-guess an agency’s scientific judgments.”

“I am vehemently against Kavanaugh’s appointment. That being said, I think it would be prudent to look across his judicial decisions to figure out where he would likely come out on a SCOTUS cannabis case before the Democrats can leverage anything related to cannabis to block his appointment,” said Cristina Buccola, of the New York Cannabis Bar Association.

“I agree that he is unlikely to expand patient rights or side with a party who looks to challenge the authority of the FDA.  Moreover, two of these cases certainly underscore that Kavanaugh has no problem chipping away at individual rights (which is also in step with his abortion dissent last year).  However, if a cannabis case reaches SCOTUS dressed as a states’ rights or pro-corporate matter, he could conceivably rule in favor of cannabis,” said Attorney Buccola.

“Cannabis has become so popular among law-abiding, productive members of society that it has rightfully forced politicians to take a position on the once taboo topic. Unfortunately, politics comes with the hidden agendas of the far right and the far left. Our hope is that an appointment of a new Supreme Court Judge, Kavanaugh or someone else, would be close enough to the middle of the road that justice would prevail; and at the least the high court would leave the decision of legalization up to each state,” said Bob Ronalter CEO and Co-Founder of Classy Joints.

“If a cannabis case is dressed up as states rights or corporate interest, we do not know how he would rule,” said Attorney Buccola.

Danny Davis, Managing Partner of Convectium, an ancillary cannabusiness said, “Kavanaugh explained his approach this way: ‘A judge must be independent and must interpret the law, not make the law.’ If we take that to mean he will evaluate cannabis with an independent interpretation and an eye on the science, health benefits, and widespread public support, then we can see it being great for the industry. When comparing the positive health benefits of cannabis to substances that offer no health benefit like tobacco and alcohol, we see a logical path to legalization nationwide. We believe Kavanaugh favors logic and his appointment will bring continued positive progress for cannabis.”

“Brett Kavanaugh’s appointment to the U.S. Supreme Court does not have a major predictable effect on the growing marijuana industry, as Kavanaugh has historically deferred to the FDA on rulings of this nature,”  said Jordan Friedman, CEO of payment platform Zodaka. That means FDA commissioner Scott Gottlieb is also one to watch keenly. Gottlieb released a statement on June 25 following the FDA’s approval of a purified form of CBD. His statement supports continuing research into medical marijuana, while also emphasizing the need for rigorous long-term testing on the effects of cannabis’ various compounds.

Gottlieb has also mentioned -coinciding with President Trump- that he believes in using investigative medicine for the terminally ill as a way to test new treatments. This line of reasoning is in direct contradiction to the ruling Kavanaugh made in the 2007 case. Therein lies the conundrum.  Have Kavanaugh’s opinions on the matter evolved in the past eleven years?

President Trump has consistently stated that he is open to letting states determine cannabis policy within their jurisdiction and potentially removing the federal ban on marijuana

“I feel that Brett Kavanaugh will likely support and maintain Trump’s current line of thinking as a Supreme Court Justice, but it is impossible to say for certain how this will all play out,” said Friedman (especially considering Trump’s unpredictable and mercurial policy-making process).

Let’s hope someone like Kamala Harris or Corey Booker has the foresight to ask Supreme Court Nominee Kavanaugh about his feelings towards marijuana during his confirmation hearings.


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