Justice Scalia’s Death and the Supreme Court Cannabis Case

By Jason Liu, second-year stu­dent at the Uni­ver­sity of Wash­ing­ton School of Law. 

Image used under the Creative Commons license.

Recently, the International Business Times’s brought up a great point that Justice Antonin Scalia’s death may have a large impact on the current lawsuit filed by Nebraska and Oklahoma against Colorado. Nebraska and Oklahoma are suing Colorado regarding the flow of cannabis products from Colorado into Nebraska and Oklahoma where cannabis is banned. The justices are scheduled to be consider whether to hear the case on Friday, March 4th.

This blog post will not go into the merits of the current case, but rather evaluate Justice Scalia’s prior rulings related to cannabis cases and discuss possible impacts of his absence on the Court. However, it appears that the forecast on the current Colorado case may be still nebulous despite the loss of Justice Scalia.

Kyllo v. United States (2001)

In a 5-4 decision Justice Scalia authored, the Court ruled that thermal imaging of a person’s residence constituted a search that required a warrant. In this case, the U.S. Department of the Interior used a thermal imaging device outside of the petitioner, Danny Lee Kyllo’s home in Oregon. Thermal imaging was used to measure heat radiating from homes to catch growers of indoor cannabis (which requires a large amount of light).

Here, cannabis was not the main point of the case. The opinion was concern technology possible invading the home, and the Court reasoned that the search was unconstitutional because the thermal imaging violated the reasonable expectations of privacy people have in their homes. Justice Scalia wrote about the potential for abuse of advances in technology, and that technology does not need to enter the home the invade one’s right of privacy.

Here we can see Justice Scalia sticking to the text of the Fourth Amendment stating that people have the right “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The International Business Time’s implies this a ruling Justice Scalia’s support for cannabis, but it appears to be neutral and focused on the Fourth Amendment issues. The Supreme Court hears a wide variety of cases, and it is well known they focus only on the issues presented to the Court. Since cannabis was not a central issue, express or implied, this case does not express Justice Scalia’s views on cannabis.

Florida v. Jardines (2013)

Similar to Kyllo, the 5-4 majority written by Justice Scalia ruled that drug sniffing dogs used to defect cannabis outside homes are “searches” that require warrants. Here, the Miama police, on a tip about a cannabis growing operation, used a drug dog to sniff the base of the petitioner’s home’s front door before obtaining a warrant.

Justice Scalia, following the reasoning in Kyllo, wrote that a “trained police dog [introduced] to explore the area around the home in hopes of discovering incriminating evidence” violates one’s expectation of privacy.

Again, as cannabis was not the central issue, rather privacy in the home, this case should be seen as neutral and not as Justice Scalia supporting cannabis issues. One can conclude that the idea of cannabis is not personally repugnant to the point of writing outside of the issue to discuss cannabis. But, there is not much to pull from this case on Justice Scalia’s views.

Gonzales v. Raich (2005)

In a plurality opinion with Justice Scalia as a concurrence, the Court ruled that the United States may criminalize the production and use of home grown cannabis even where states approve its use for medicinal purposes. In this cases, the petitioner, the U.S. government argued that the U.S. government had authority under the Commerce Clause of the Constitution to enforce the Controlled Substances Act (CSA) to prosecute against cannabis use. Here the opposing parties, Monson and Angel Raich were growing cannabis plants (six only) for medical use under California’s medical cannabis Compassionate Use Act.

Scalia, in his separate opinion noted that although Monson and Raich constituted in non-economic activity (they didn’t sell their cannabis), the Commerce Clause applied because of the larger impacts of home growing.

That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.

Justice Scalia noted that “drugs like marijuana are fungible commodities,” and thus “never more than an instant from the interstate market.” Justice Scalia did not differentiate between cannabis between personal medical use and for sale.

This case strongly expresses Justice Scalia’s views on cannabis and drugs in general. It appears that Justice Scalia creates a legal fiction that drugs can have non-economic use, but are essentially economic in nature, thus triggering federal bans (CSA). On questions of the status of cannabis, Justice Scalia will very likely rule that the CSA enforced action controls under the Commerce clause.

In 2014 when asked about conflicts between state and federal laws over cannabis, Justice Scalia noted that “the Constitution contains something called the Supremacy Clause.”


On cannabis, Justice Scalia, may have provided the court the view that federal laws would be applicable to the Nebraska and Oklahoma case. However, it depends on how the legal issues are framed. Glancing through the briefs, Nebraska and Oklahoma are claiming action on violations of interstate commerce of cannabis products while Colorado is making a completely different argument that the case should not be original jurisdiction in the Supreme Court and avoid the substantive claims. Furthermore, the case is atypical as the state is enforcing a federal law (CSA) against another state opposed to the federal government prosecuting with the CSA as an authority.

Overall, the loss of Justice Scalia may not be clear as to the impact on the Colorado case.

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