Wanna Beat Trump’s Supreme Court Nominee? Focus on Marijuana

Democrats have a really potent card to play against Brett Kavanaugh. Why aren’t they playing it?


Photo Illustration by Elizabeth Brockway/The Daily Beast

What if I were to tell you that there is a political issue that galvanizes young voters? An issue that unites libertarians, independents, and African-Americans? An issue with bipartisan power, that works not only in cities, but has demonstrated strength in red states like Kentucky and West Virginia?

It’s an issue likely to generate cases to be heard by the Supreme Court in the next decade and one on which the Trump administration’s leading law enforcement official—Attorney General Jeff Sessions—is already on the losing side politically.

Given all that, you would think this issue would be a central part of the Democratic Party’s campaign against Brett Kavanaugh’s nomination for the Supreme Court. You would think wavering Democrats and shaky Republican senators would be targeted on the basis of the threat Kavanaugh poses on this issue.

But because the progressive movement sometimes makes political basics look liking trying to solve Fermat's Last Theorem, you would be wrong.

The issue I speak of is marijuana. And it is likely to be a source of many complicated legal disputes in the coming decade, disputes that will be of increasing salience to American voters and, by turn, the Supreme Court.

In fact, the Supreme Court has already had to deal with some marijuana-related matters. Just a few years ago, it was asked to weigh in on Colorado’s decision to legalize marijuana. Nebraska and Oklahoma argued Colorado’s law was preempted by the federal Controlled Substances Act, and that the court should enjoin Colorado from implementing its law. Nebraska and Oklahoma complained that Colorado’s decision to legalize marijuana “undermin[ed] their own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems.”

On presumably technical grounds, six members of the Court declined to hear the lawsuit, but without prejudice (meaning there was no implication those Justices disagreed on the merits and the states could pursue their theory in the lower courts).

Justice Clarence Thomas, joined by Justice Samuel Alito, dissented from the decision to not hear the case not only on technical grounds, but also by noting that Nebraska and Oklahoma have alleged “significant harms to their sovereign interests caused by another State.” They stated that those allegations were significant enough to warrant the Court’s attention.

That decision was back in 2016. How will Justice Neil Gorsuch (typically an ally of Thomas and Alito) feel when this question comes back to the Court now, as it likely will? How would a Justice Kavanaugh, who most well-informed observers believe is essentially Gorsuch 2.0, feel about it? Would Chief Justice John Roberts feel differently about it with a social-issues moderate like Justice Anthony Kennedy no longer on the Court?

These are important questions, affecting a massive and growing industry that a growing portion of the population supports. And yet, they’ve been completely unasked during this current debate about the future composition of the Court.

That shouldn’t be the case, if only because the core question of whether the federal Controlled Substances Act “preempts” state laws—that is, does the existence of the federal law making marijuana illegal prevent states from enacting contradictory laws on the same subject—remains a reasonable threat to reach the Supreme Court, and one could see the glimmerings of a hard right majority that would make such a theory law.

And a lawsuit by one state against another is hardly the only way the issue of marijuana legalization could come before the Court. For example, private individuals and Colorado, Kansas, and Nebraska law enforcement officers have also sued to challenge Colorado’s legalization of marijuana, even invoking RICO in addition to preemption. 

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Recall that Sessions soured on the KKK not due to abhorrence of their violent racism, but over his discovery that many KKK members smoked pot (seriously). It is extremely plausible that Sessions could accelerate a battle against states reforming their marijuana laws by enforcing the federal Controlled Substances Act against uses of marijuana that have been legalized under state law. Indeed, even as it held that individuals could not enforce the CSA, the Tenth Circuit has expressly held open this possibility, noting that that “the Attorney General remains empowered to enforce the CSA to the extent Congress so authorized.” 

It’s impossible, of course, to say for sure whether other questions surrounding marijuana legalization will come to the Court, or in what form. But it appears likely. Even the intersection of banking law and drug policy is a messy thicket right now. America’s slow burning experiment with marijuana reform raises many as yet unclarified legal issues.

And that’s why those who are interested in marijuana legalization should also want to know what Judge Brett Kavanaugh thinks about the host of legal questions that might ultimately decide its future.

As a political matter, there are few better cards for the Democratic Party to play.

According to Gallup, support for legalization has "risen from 12 percent in 1969 to 31 percent in 2000 to 64 percent in 2017." Several other surveys reveal similar increases. An April 2018 Quinnipiac poll shows support for marijuana legalization not only strong among Democrats (75 percent) but Independents as well (67 percent), and even 41 percent of Republicans.

Support remains strongest among millennials—a group that commentators have noted is crucial to Democrats’ performance in this November’s midterm elections—but it has also risen rapidly among all age groups and places. This past June, Oklahoma—Oklahoma!—voted to legalize marijuana.

In an environment in which marijuana is salient to the Supreme Court and many voters, the fact that marijuana is not part of the effort to secure red and purple state Senate votes against Kavanaugh is a little perplexing.

Not least because it has already proven to be a topic that can compel lawmakers to act. Senators with “the federalist position” on-marijuana includes progressives like Senators Cory Booker and Kirsten Gillibrand but also Republicans “Rand Paul, Lisa Murkowski, and Mike Lee.”

But no Senator better reflects the potential of the marijuana issue as a wedge than Colorado’s Cory Gardner.

Just last month, Gardner and Sen. Elizabeth Warren (D-MA) released a marijuana legislation reform bill to “give states the right to determine the best approach to marijuana within their borders.” And for three months this winter, Gardner held up all Justice Department nominees in an effort to force Attorney General Sessions to agree to leave Colorado’s marijuana industry alone.

That display of spine was about as much as any Republican Senator has shown in attempting to restrain the Trump Administration to date. But it also made sense. Being viewed as a fighter for Colorado's right to legalize marijuana is likely pivotal to Gardner's political survival. In 2014, Gardner won his seat in a GOP wave by a mere 2 points. In 2020, he will be facing an uphill battle since he holds the single most pro-Hillary Clinton seat of any Republican in the U.S. Senate.

Additionally, Colorado is a state in which Cruz “trounced” Trump in the 2016 presidential caucus, which along with other factors suggests that Gardner has much less fear of a Trumpist primary challenge in 2020 than almost any Republican in the Senate.

It may seem difficult to imagine that Gardner would feel comfortable enough to run the risk of that challenge materializing by voting against Kavanaugh on grounds of protecting his state’s marijuana industry. But it is a legitimate pressure point that Democrats should be utilizing by reminding voters in Colorado that advancements in marijuana legalization could face a hurdle in the years to come via the Supreme Court.

In the past, Democrats have recognized the advantages the issue has provided. Jared Leopold, communications director of the Democratic Governors Association, observed that Sessions’ crackdown on marijuana was not “a winner for Republicans anywhere. But it’s especially a problem in a state like Colorado, where marijuana is a major source of revenue for the state government.” 

Marijuana is not a staple of Supreme Court fights. The issue advocacy groups that focus on marijuana do not typically focus on the Supreme Court. And Cory Gardner is not a typical target for Democrats.

But “typical” isn’t good enough. It is sadly clear that if progressive groups and Democrats rely exclusively on raising the same issues they raised in the Gorsuch “fight” in 2017, Kavanaugh will be confirmed easily.

Marijuana reform is one of the most important new political issues of this era and it’s about time Democrats and progressives take it seriously.

Jeff Hauser is a lawyer and the Director of the Revolving Door Project, which focuses on exposing political corruption.