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Supreme court nominee sides with DEA on marijuana policy

When President Obama nominated Merrick Garland to fill the vacancy on the nation’s highest court, I was excited to see cannabis news outlets gushing over Garland’s position on cannabis law.

Like most of the country, I couldn’t have picked Merrick Garland out of a crowd if he’d been wearing a powdered wig and flowing black robes. Also like most of the country, I was getting my Garland updates from reposts on Facebook and Google News alerts for the word “cannabis.” The reports were encouraging.

Merrick Garland, Chief Judge of the United States Court of Appeals for the District of Columbia Circuit
Merrick Garland, Chief Judge of the United States Court of Appeals for the District of Columbia Circuit

Within a few hours of the announcement, Garland was called “a sensible pick,” “positive for the cannabis industry,” and was even identified as a man whose “deference to scientific evidence” made him worthy of the Supreme Court. Several articles used the phrase “thumbs-up” to refer to Garland’s reception by the cannabis industry. Both VICE and The Daily Caller went all-in on Garland as a pro-cannabis nominee within minutes of Obama’s presser.
My first reaction? Unadulterated joy.

I’m thrilled to see news outlets considering cannabis as a front-line issue in a SCOTUS nomination cycle. It means in some small way that the cannabis legalization movement is getting the attention we’ve been working to secure for decades. And the idea of a Supreme Court justice deferring to scientific evidence? Obviously that would be good for our cause. We’ve got science on our side. Personal politics aside, Garland was looking like a pro-cannabis selection, a level-headed centrist who would appeal to people of all stripes, and maybe even the driving force behind sweeping changes to federal cannabis laws.

Unfortunately, it was all a mirage.

Garland currently serves as the chief justice of the “second-highest court in the land,” the DC Circuit of the US Court of Appeals. Long considered a fast-track to the US Supreme Court, the DC Circuit Court’s docket is stuffed with federal administrative appeals and other heady federal issues. Garland’s tenure as chief of that body began in 2013, and it’s that position that most news agencies are crediting with broadening the judge’s appeal at the national level. The reported affection for Garland from both sides of the aisle in Congress is a big reason why President Obama chose him to fill the third (and most-challenging) SCOTUS vacancy of his presidency.

I’ve been inundated the past few weeks with stories of Merrick Garland’s humanity. The heart-warming stories keep rolling in – Garland defending the honor of a classmate in his high school graduation speech, Garland proposing to his wife in a particularly sweet way. I expected this. It’s a good tactic, if you consider the American people’s symbiotic relationship with soundbites. Unfortunately, it only serves to muddy the water even more.

While many in the cannabis press rush to paint Garland as a future champion of the movement, I’m worried about his status as a legitimate prohibitionist. At the very least, you can say he’s sympathetic to the prohibitionist cause.

The ruling that Garland had a part in that gives me the most pause involved considering the rescheduling of cannabis, to recognize its basic value as medicine and to lift the government’s needlessly-restrictive research prohibitions. Garland, as part of a panel of three judges, totally waffled.

It happened in 2011. The petitioners in this case were appealing the rejection by the DEA of yet another attempt to reschedule cannabis. What’s noteworthy about this case is that for the first time real patients took part, testifying in front of Justice Garland about the benefits they get from using cannabis. Unfortunately for these brave individuals, they found themselves in Judge Garland’s DC Federal Appeals Court.

It’s important to point out that Garland was assisted in this bumbling effort by two other federal judges. Still, their ruling plainly stinks. Judge Garland and the other two members of the panel swallowed the DEA’s story, hook, line, and sinker. For example, on the question of whether the DC Circuit Court was in a position to reject the DEA’s claim that marijuana is a dangerous drug, Judge Garland said “Don’t we have to defer to their judgment? We’re not scientists. They are.” This quote comes to us from this piece the LA Times ran in 2012.

Where some bloggers, cannabis industry execs, and journalists saw a ray of sunshine (“He wants to defer to science, not Reefer Madness propaganda!”), I see a thunderhead. This isn’t deference to scientific judgement, it’s deference to the Drug Enforcement Administration. Here, Garland is making a direct appeal to a law enforcement body. And not just any law enforcement body, either.

The DEA has been the driving force behind the government’s resistance to cannabis rescheduling for four decades. Not only have they rejected every single petition for reclassification, they’ve been on the attack so long that they’re now considered a reliable witness in court. DEA lawyers and agents regularly appear in federal courts (including Judge Garland’s own court) to assist in the government’s fight against reclassification.

Let that sink in for a minute – the drug enforcement arm of the federal government has been resisting cannabis-as-medicine for so long that they’re now considered a reliable witness in that very resistance.

For Garland to suggest that the second-highest court in the land defer to the DEA’s judgement isn’t just ridiculous, it’s frightening. Especially if Obama is serious about Merrick Garland’s nomination.

The body that Garland refers to as “scientists” is in fact a law enforcement agency with 11,000 employees and a $3 billion budget. It’s an agency that claims alcohol prohibition in the 1920s was a success. A group whose agents have been caught dipping into the drug-money till, murdering on foreign soil, and throwing lavish drug-fueled parties on taxpayer money. When the DEA isn’t attempting to ban glow sticks, or moving to pass a law against adults owning pacifiers, they’re busy comparing cannabis to heroin and crack cocaine. This is the team of scientists that Obama’s nominee wants to trust when forming our national drug policy.

As far as I can tell, a Supreme Court Justice Garland would go out of his way to side with the DEA on cannabis law. This would be a massive defeat for the movement, a step backward we haven’t experienced since big changes to cannabis law in places like Colorado and Washington.

I have other reasons to fear a SCOTUS bench with Merrick Garland’s name on it. His rulings against habeas corpus for Guantanamo detainees are a chilling symptom of a deeper disrespect for civil rights. Anecdotally, he’s known to rule more often against appeals by criminal defendants, apparently going so far as to dissent from the rest of his bench, which isn’t common in the DC circuit. The simple fact that legalization means turning something illegal into something legal means Justice Garland probably won’t be on board.

But it should be said that Garland may be an improvement on the justice he’s been nominated to replace. Antonin Scalia was an unabashed Prohibitionist, a man who believed that federal drug laws supersede state laws. We don’t yet have any reason to suspect that Garland feels the same way. It must be said, even in a blog post attacking his cannabis credentials, that he looks like an improvement over the late Justice Scalia.

We all know cannabis activists who voted for Barack Obama (perhaps even twice) because of his purported liberal drug policies. It makes sense that Obama would nominate someone at least somewhat in line with his own views on cannabis, considering the shadow cannabis legalization is casting across his tenure in the White House. If President Obama is willing to appoint an active prohibitionist to the Supreme Court, it’s time to question his reformist credentials, to doubt his dedication to drug policy reform, and to look elsewhere for a voice at the highest levels of political power.

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Will Roby

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