Obama’s Supreme Court Pick: The One Thing We Know About Merrick Garland and Cannabis

Published on March 18, 2016 · Last updated July 28, 2020

President Barack Obama might have a strain named after him, but that’s about as close to the cannabis community as he’s come lately. So when the president announced his U.S. Supreme Court nominee Wednesday morning, pot pundits were sent scrambling. 

What, everyone wanted to know, might Merrick Garland think of cannabis?

Longtime reformer Tom Angell came up with the first morsel, tweeting a Garland quote from a 2012 LA. Times story. Garland at the time was on a federal three-judge panel hearing an appeal by Americans for Safe Access over whether the DEA should reschedule cannabis.

With that one tweet, Angell pretty much exhausted what we know about Garland’s stance on cannabis. Some news outlets built entirestories off that lone, out-of-context quote. But how much does it actually tell us? It’s not so clear. 

First of all, the quote requires a bit of interpretation. It’s not clear whether Garland was actually pushing for the court to side with the DEA or simply asking the lawyers, as judges sometimes do, to provide legal justification for a possible action (in this case, questioning the DEA’s scheduling discretion). Sure, the quote is couched in a way that suggests the court should indeed defer to the DEA, but it’s tough to know for sure that’s what he meant.

Second, it’s not as though the court’s ruling — the panel ultimately sided with the DEA — was all that unusual. Every rescheduling effort since the Controlled Substances Act (CSA) became law in 1970 has fallen short. Jacob Sullum of Reason magazine writes that much of that failure is because the CSA gives the DEA broad leeway about what it means for a substance to have a “high potential for abuse,” “no currently accepted medical benefit,” and “a lack of accepted safety.” It might be laughable that the agency thinks cannabis deserves those descriptors, but Sullum’s point is that the CSA leaves it to the DEA, not judges, to make that determination.

Obama Punts on Cannabis Reform

Federal law is so stacked against cannabis that Garland might not have had much wiggle room anyway, Sullum concludes. “I therefore would not read too much into Garland’s position in this case,” he writes, adding cheekily that “it is notable that the man who nominated him likes to pretend this whole body of law does not exist.” Zing.

Finally, even if the quote is as damning as Angell seems to suggest, it’s still not much to go on. And while there are other indicators, they’re based mostly on generalizations. For example, many legal observers describe former prosecutors as generally deferential to the government; Garland, who spent time in the Justice Department, certainly seems to have been that in the DEA case. But when it comes to how he’ll deal with a specific matter in the future, it’s anyone’s guess. (Frustrated? Don’t worry. Folks at Broadly can’t figure out what Garland would mean for women, either.)

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Perhaps the most helpful thing we know for the time being is that a Garland is moderate Democrat — a safe pick by Obama, according most accounts. As Hillary Clinton shows, that doesn’t bode particularly well for cannabis, but it sure looks better than Scalia.

Ultimately, though, it might not make much difference. Republicans have insisted that Obama’s nomination is a nonstarter, and many have pledged to drag their heels until the next president takes office. So all this armchair analysis by the marijuana media might be moot.

Editors' note: An earlier version of this story included a tweet by Tom Angell that he clarified was not related to Garland's views on cannabis.

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Image source: Diego M. Radzinschi / The National Law Journal

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Ben Adlin
Ben Adlin
Ben Adlin is a Seattle-based writer and editor who specializes in cannabis politics and law. He was a news editor for Leafly from 2015-2019. Follow him on Twitter: @badlin
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