Supreme Court Justice Calls for the Reversal of Marijuana Prohibition

Supreme Court Justice Clarence Thomas said what most of us are thinking on Monday: The federal government’s longstanding prohibition on marijuana may well be past its expiration date.

Thomas, widely seen as one of the most conservative justices on the high court, made the observation in response to the Supreme Court’s decision to turn down the appeal of a Colorado medical cannabis dispensary that sought the same federal tax breaks afforded to other businesses.

Citing Gonzales v. Raich, a 2005 Supreme Court case that cemented the federal government’s prohibition on weed, Thomas said the law may have finally outlived its usefulness, given the growing number of states and cities that have embraced legalization, both for medical and recreational use.

“Sixteen years ago, this Court held that Congress’ power to regulate interstate commerce authorized it ‘to prohibit the local cultivation and use of marijuana,” Thomas wrote in his statement. “The reason, the Court explained, was that Congress had ‘enacted comprehensive legislation to regulate the interstate market in a fungible commodity’ and that ‘exemption[s]’ for local use could undermine this ‘comprehensive’ regime. The Court stressed that Congress had decided ‘to prohibit entirely the possession or use of [marijuana]’ and had ‘designate[d] marijuana as contraband for any purpose.’ Prohibiting any intrastate use was thus, according to the Court, ‘‘necessary and proper’’ to avoid a ‘gaping hole’ in Congress’ ‘closed regulatory system.”

He added: “Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.”

The statement from Thomas is the latest sign that the federal prohibition on marijuana may finally be about cashed. Nearly 40 states have legalized medical marijuana, while 18 have legalized recreational pot use for adults.

Along with public opinion polls showing solid majorities in favor of legalization, there are mounting signs that Congress is prepared to get serious about it too. In April, Senate Majority Leader Chuck Schumer said that Democrats are eager to push for legalization.

“We will move forward,” Schumer said at the time. “[President Joe Biden] said he’s studying the issue, so [I] obviously want to give him a little time to study it. I want to make my arguments to him, as many other advocates will. But at some point we’re going to move forward, period.”

The Supreme Court Justice’s Statement is Part of a Bigger Movement

Last month, Democrats in the House of Representatives introduced legislation that would do just that. The MORE Act, as it is called, aims to “decriminalize and deschedule cannabis, to provide for reinvestment in certain persons adversely impacted by the War on Drugs, to provide for expungement of certain cannabis offenses, and for other purposes.”

The statement on Monday from Thomas is a reflection of the growing bipartisan consensus on the issue.

“A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or

proper to support the Federal Government’s piecemeal approach,” Thomas wrote.

He added, “Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. If the Government is now content to allow States to act ‘as laboratories’ ‘‘and try novel social and economic experiments,’’ then it might no longer have authority to intrude on ‘[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.”