Judge Neil Gorsuch speaks to the crowd after U.S. President Donald Trump nominated him to the Supreme Court during a ceremony in the East Room of the White House January 31, 2017 in Washington, DC. (Photo credit: Alex Wong/Getty Images)
________________________________________________________
Neil Gorsuch’s judicial philosophy
President Donald Trump announced his pick for the Supreme Court Tuesday evening, January 31, nominating conservative federal appeals court judge Neil Gorsuch to fill the current vacancy on America’s highest court.
The Court’s ninth seat has been empty for nearly a full year, since former Justice Antonin Scalia died unexpectedly of unknown natural causes on February 13, 2016, as CNN reported.
Gorsuch, 49, was appointed to the U.S. Court of Appeals for the 10th Circuit by former President George W. Bush in 2006, and his academic credentials and conservative judicial record make him a “natural fit” for a Republican appointment to the Supreme Court, according to SCOTUSblog contributor Eric Citron.
Gorsuch is often described as an originalist and textualist who interprets the Constitution and statutes as they were originally written. His record aligns with judicial conservatives at the Federalist Society and Heritage Foundation, as The Denver Post reports, and legal experts often liken his judicial style and approach to that of late Justice Scalia.
“Like Scalia, Gorsuch also seems to have a set of judicial/ideological commitments apart from his personal policy preferences that drive his decision-making,” Citron says.
Gorsuch is considered a social conservative, and while his opinions on drug policy and marijuana reform aren’t crystal clear, his judicial record on the U.S. Court of Appeals for the 10th Circuit provides useful insight into how he might influence drug policy if confirmed to the Supreme Court.
________________________________________________________
Marijuana and taxes
Perhaps the most telling example of Gorsuch’s approach to adjudicating conflicts between federal and state marijuana laws is found in the case of THC v. IRS, which the U.S. Court of Appeals for the 10th Circuit ruled on in December 2015.
The case centers around the Internal Revenue Service’s refusal to recognize a Colorado marijuana dispensary’s business expense deduction on the grounds that the business violated federal drug laws.
Colorado is one of many states that has legalized both medical and recreational marijuana use, defying federal prohibition.
Petitioners, who operated Total Health Concepts dispensary, also known as THC, argued the IRS lacked authority to determine whether or not the dispensary was violating drug laws, and therefore should have recognized its business deductions just like any other business.
Seeking to prove the dispensary was indeed trafficking marijuana, the IRS requested petitioners disclose more information about the nature of their business, at which point, dispensary operators asserted their Fifth Amendment privilege against self-incrimination.
The IRS argued that Justice Department memoranda directing federal prosecutors not to go after state-legal marijuana businesses meant the dispensary faced no threat of federal prosecution and invalidated its Fifth Amendment claims.
In his ruling, Gorsuch contended the IRS was wrong to argue that the dispensary was protected from federal prosecution. Gorsuch said Justice Department memoranda hold little weight in courts of law and that the dispensary would continually be at risk of federal prosecution until Congress changes federal drug laws.
Per Gorsuch’s opinion:
“ … it’s true, as the IRS stresses, that two consecutive Deputy Attorneys General have issued memoranda encouraging federal prosecutors to decline prosecutions of state-regulated marijuana dispensaries in most circumstances. But in our constitutional order it’s Congress that passes the laws, Congress that saw fit to enact 21 U.S.C. § 841, and Congress that in § 841 made the distribution of marijuana a federal crime. And, frankly, it’s not clear whether informal agency memoranda guiding the exercise of prosecutorial discretion by field prosecutors may lawfully go quite so far in displacing Congress’s policy directives as these memoranda seek to do. There’s always the possibility, too, that the next (or even the current) Deputy Attorney General could displace these memoranda at anytime … ”
________________________________________________________
Marijuana and religion
Gorsuch, who is known as an ardent defender of religious liberties, sided with Christian employers in the 2014 case of Burwell vs. Hobby Lobby on the grounds that a contraception mandate in President Obama’s Affordable Care Act violated the employer’s religious beliefs. But Gorsuch has not demonstrated the same deference to the religious liberties of lesser-known schools of belief that utilize marijuana as a sacrament.
In United States v. Quaintance, defendants Danuel and Mary Quaintance challenged their indictment for conspiracy and possession with intent to distribute marijuana, filing a motion to dismiss the case on the grounds of religious freedom.
The Quaintances said they were founding members of the Church of Cognizance, which believes that marijuana is a “deity and sacrament,” according to court records. Defendants argued that prosecuting them for marijuana crimes violated the Religious Freedom Restoration Act (RFRA), which forbids the federal government from placing substantial burdens on sincerely held religious beliefs without a countervailing compelling government interest.
The 10th Circuit Court of Appeals denied the motion to dismiss.
“In the district court’s view, the Quaintances failed to show that their beliefs about marijuana qualify as ‘religious’ within the meaning of RFRA,” Gorsuch wrote in his 2010 opinion. “Even if they had succeeded on that score, they couldn’t show that they sincerely held their professed religious beliefs, rather than simply used them as cover for secular drug activities.”
________________________________________________________
Judge Neil Gorsuch (L) speaks to the crowd as his wife Louise (R) looks on after U.S. President Donald Trump (2nd L) nominated him to the Supreme Court during a ceremony in the East Room of the White House January 31, 2017 in Washington, D.C. (Photo credit: Alex Wong/Getty Images)
________________________________________________________
Drug policy and criminal procedure
“Gorsuch, just like Scalia, is sometimes willing to read criminal laws more narrowly in a way that disfavors the prosecution,” Citron writes. This is especially true when constitutional protections are involved.
For example, Gorsuch dissented in United States v. Carloss, arguing that police officers had violated the Fourth Amendment rights of the defendant — who was later charged with multiple drugs and weapons offenses — when they came to his front door seeking to search the home without warrant despite “No Trespassing” signs posted on the front door and around the home.
In the case of United States v. Woodard, Gorsuch ruled in favor of reversing the defendant’s conviction of possessing over 100 kilograms of marijuana with intent to distribute on the grounds that the district court violated Woodard’s Sixth Amendment confrontation rights during cross examination in a jury trial.
However, in the 2013 case of Wilson v. City of Lafayette, Gorsuch ruled that Lafayette Police Officer Ryan Harris had not used excessive force in violation of the Fourth Amendment when he fired a taser at a man allegedly running from police after he was caught with illegal cannabis plants. The man who was tased, Ryan Wilson, died at the scene of apparent cardiac arrhythmia, according to court records. Gorsuch said in his ruling that Officer Harris couldn’t have known at the time he fired his taser that Wilson had a pre-existing heart condition, and that firing the taser could result in his death.
________________________________________________________
Marijuana and federalism
In a December 2016 story in The Denver Post, law professor Justin Marceau described Gorsuch as “a predictably socially conservative judge who tends to favor state power over federal power.”
A jurisprudence that bends toward state’s rights might bode well for states that have legalized marijuana, but there’s no guarantee that will pan out in favor of progressive marijuana reform.
Scalia was also a strong supporter of state’s rights, but when it came to the question of state’s rights to legalize marijuana in defiance of federal law, Scalia cited the Supremacy Clause and sided with the federal government’s authority over drug policy.
________________________________________________________
The takeaway
If Gorsuch is confirmed, he’ll be a conservative justice replacing another conservative justice. That’s not going to swing the court majority in any particular direction. But the next Supreme Court opening could be a whole different story — especially if liberal-leaning Ruth Bader Ginsberg, 83, or Stephen Breyer, 78, were to step down during the Trump administration.
________________________________________________________
Related slideshow:
10 things you can do right now to support marijuana reform
Gallery links: Drug Policy Alliance, Americans for Safe Access, Marijuana Policy Project, National Organization for the Reform of Marijuana Laws, Multidisciplinary Association for Psychedelic Studies, Students for Sensible Drug Policy, DrugSense, Law Enforcement Against Prohibition, OnTheIssues, NORML Congressional Scorecard, usa.gov/elected-officials, 28 states where medical cannabis is legal, Open Public Meetings Act, The Guardian, Marijuana Policy Project – state policies, POW420.com, Tax Foundation
.
Gallery social media photo link(s): Drug Policy Alliance/Facebook
The post How Trump’s SCOTUS nominee Neil Gorsuch could impact marijuana policy appeared first on Extract.