Donald Trump has announced his pick for the Supreme Court this week. He has nominated Neil Gorsuch, a 49 year old judge in the 10th US Circuit Court of Appeals who resides in Boulder, Colorado; a state with legal pot. The decision has put Gorsuch under scrutiny as many try to decipher what his stance will be within the court and what consequences that could ultimately have on marijuana policy. The marijuana community has been investigating his case records, statements, interviews and history, trying to get a sense of what his impact will be on cannabis reform as well as state versus federal law. Strangely, Gorsuch seems to be a fairly safe choice for Supreme Court Justice. His record is fairly well balanced, although conservative, and even some liberals are agreeing that he should be confirmed.
Past Marijuana-Related Cases Overseen by Gorsuch
Based on a review of his past cases, only 3 have related to marijuana. Each situation has a very different relationship to marijuana and none of them reveal his personal opinions about the plant. In one 2015 case, a legal pot store made business deductions in their taxes. The IRS refused to accept them due to the nature of the business. Then the IRS tried to make the company reveal its business in court and they invoked their Fifth Amendment rights to not incriminate themselves. Although he ruled in favor of the IRS, he had clear concerns about the law.
“This case owes its genesis to the mixed messages the federal government is sending these days about the distribution of marijuana,” he explained, marveling at the contradictions being presented by the federal government when it comes to marijuana and legal pot. He felt the IRS was trying to get the court to acknowledge that the company was committing a federal crime without intending the enforcement of federal criminal law.
A Case of Religious Ceremony
In another 2010 case, he ruled against a couple who had been selling marijuana before it was legalized, under the guise of it being a religious ceremonial tool. In this case there was an overwhelming amount of evidence that indicated that this was false and the couple were selling marijuana for economic commercial.
Another Case Not Directly Relating to Weed
Lastly there was a case in 2013 where a man suspected of illegally manufacturing pot led the police on a foot chase over fences, including a barbwire fence and a stretch of rough terrain until an officer fired a taser that killed the man. In this case, Gorsuch sided with police. He acknowledged that the manufacture of pot was not a violent crime but stated that officers are trained to use force to protect themselves from people who are committing illegal acts because, regardless of the crime, suspects may use excessive force to defend themselves.
Gauging Gorsuch’s Legal Pot Stance Through General Actions
In all of these cases, he stays on the reasonable side of trying to follow the law. There is no indication one way or the other about what his actual personal stance on marijuana is, although his focus seems to be on respecting state law.
He once wrote, in relation to a separate case where a girl was disciplined for making fake burps in class in 2013, “often enough the law can be ‘a ass — a idiot,’” a quote from Charles Dickens’s Oliver Twist, “and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for the results he prefers rather than those the law compels.”
It remains to be seen how Gorsuch’s nomination will proceed but no doubt he will be asked directly about his position on legal weed. Many see him as a figure that will restore the court to where it was before Supreme Court Justice Antonin Scalia died, a judge to whom Gorsuch has been likened. Only time will tell.