Does Brett Kavanaugh Love Weed As Much As Alcohol?
A demonstrator opposed to Supreme Court nominee Brett Kavanaugh holds a “Kava Nope” sign on the East . [+] Front of the U.S Capitol in Washington, D.C., U.S., on Saturday, Oct. 6, 2018. Photographer: Aaron P. Bernstein/Bloomberg
The confirmation of Brett Kavanaugh for the Supreme Court and the ensuing media circus is dividing Americans like no other Justice since Clarence Thomas. With much of the drama focused on Justice Kavanaugh’s juvenile drinking habits, speculation regarding how he feels about cannabis has fallen by the wayside. As a judge, Kavanaugh has never ruled directly on cannabis matters.
Democrat Jeff Hauser wrote a meandering op-ed in the Daily Beast, which said in part that the obvious way to trump the POTUS’ Supreme Court nominee Brett Kavanaugh, is for Democrats to focus on Marijuana. “Democrats have a potent card to play against Brett Kavanaugh,” wrote Hauser, “So why aren’t they playing it?”
Hauser’s argument, however, is unsubstantiated. Cannabis is not a Democratic partisan issue. Just ask former Republican Speaker of the House of Representatives, John Boehner, who sits on the Board of cannabis company Acreage Holdings. Which way Kavanaugh would lean as a Supreme Court Justice regarding marijuana is anybody’s guess.
The U.S. Constitution is the prism by which Kavanaugh reflects his legal interpretations. The constitution does not say anything about marijuana, which was legal until 1937, when the Marihuana Tax Act was passed, beginning prohibition. As a strict constitutionalist, he should be of the opinion that marijuana laws should be left to the individual states to decide.
The 10th Amendment to the constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 10th Amendment was included in the Bill of Rights to further define the balance of power between the federal government and the states. In a nutshell, if a law is not in the constitution, it is up for the individual states to decide. Hence, medical and recreational marijuana legalization.
Kavanaugh is a strict constitutionalist, but he is also likely to support the FDA. The FDA recently approved Epidiolex after years of stating that marijuana had no medicinal value. Epidiolex is the first and only cannabis-based drug to be de-classified as a Schedule I substance and reclassified in Schedule V. CBD otherwise remains in Schedule I.
If the FDA changed their tune, will Kavanaugh follow suit? These variables should factor in while predicting which way Kavanaugh will rule on cases that involve cannabis.
A 2007 case in which he sided with the majority, holding that the US Constitution does not provide terminal patients a right to try experimental drugs with limited clinical trials that haven’t been proven safe and effective;
A 2012 case A 2012 case in which he wrote a dissent to the majority decision – which was declared unconstitutional on Fourth Amendment grounds a random drug testing policy of all employees of a federal agency regardless of their responsibilities and requirements of their position;
A 2013 case in which he penned the opinion that deferred to FDA discretion/oversight, stating that “courts must be careful not to unduly second-guess an agency’s scientific judgments.”
“I am vehemently against Kavanaugh’s appointment. That being said, I think it would be prudent to look across his judicial decisions to figure out where he would likely come out on a SCOTUS cannabis case before the Democrats can leverage anything related to cannabis to block his appointment,” said Cristina Buccola, of the New York Cannabis Bar Association .
“I agree that he is unlikely to expand patient rights or side with a party who looks to challenge the authority of the FDA. Moreover, two of these cases certainly underscore that Kavanaugh has no problem chipping away at individual rights (which is also in step with his abortion dissent last year). However, if a cannabis case reaches SCOTUS dressed as a states’ rights or pro-corporate matter, he could conceivably rule in favor of cannabis,” said Attorney Buccola.
“If a cannabis case is dressed up as states rights or corporate interest, we do not know how he would rule,” she continues.
Danny Davis, Managing Partner of Convectium , an ancillary canna-business said, “Kavanaugh explained his approach this way: ‘A judge must be independent and must interpret the law, not make the law.’ If we take that to mean he will evaluate cannabis with an independent interpretation and an eye on the science, health benefits, and widespread public support, then we can see it being great for the industry. When comparing the positive health benefits of cannabis to substances that offer no health benefit like tobacco and alcohol, we see a logical path to legalization nationwide. We believe Kavanaugh favors logic and his appointment will bring continued positive progress for cannabis.”
Kavanaugh has historically deferred to the FDA on rulings of this nature.
Therefore, FDA commissioner Scott Gottlieb is also one to watch keenly. Gottlieb released a statement on June 25th, 2018, following the FDA’s approval of a purified form of CBD. His statement supports continuing research into medical marijuana, while also emphasizing the need for rigorous long-term testing on the effects of cannabis’ various compounds.
Gottlieb has also mentioned -coinciding with President Trump- that he believes in using investigative medicine for the terminally ill as a way to test new treatments. This line of reasoning is in direct contradiction to the ruling Kavanaugh made in the 2007 case. Therein lies the conundrum. Have Kavanaugh’s opinions on the matter evolved in the past eleven years?
President Trump has consistently stated that he is open to letting states determine cannabis policy within their jurisdiction and potentially removing the federal ban on marijuana .
It is believed that Brett Kavanaugh will likely support and maintain President Trump’s current line of thinking as a Supreme Court Justice, given that the POTUS was Kavanaugh’s staunchest supporter during the inquest into psychology professor Christine Margaret Blasey Ford’s sexual assault allegations against him.
While the whole world is acutely aware of Justice Kavanaugh’s feelings about alcohol, no one had the foresight to ask him during his confirmation hearings about his feelings towards marijuana.How the newly appointed SCOTUS justice will rule on cannabis cases is anybody’s guess.
What Cannabis Consumers Can Expect From Trump’s Supreme Court Nominee Brett Kavanaugh
The departure of longtime Supreme Court Justice Anthony Kennedy has cast uncertainty over American politics as commentators aren’t sure what to expect from his proposed replacement, Brett Kavanaugh. While the fate of Roe v. Wade and gun control are uncertain, it seems likely that President Trump’s nominee will uphold the status quo as far as the legal status of cannabis is concerned.
“Kavanaugh has not directly commented on this issue, so his personal views are unknown,” Hunter J. White—Communications Director for Republicans Against Marijuana Prohibition (RAMP)—told Civilized. “However, from the deference he has shown to regulatory agencies and findings, it is clear he would not second guess the wisdom or accuracy of marijuana as a Schedule 1 drug.”
That means Kavanaugh probably won’t support any challenges to the constitutionality of the Controlled Substances Act, which says marijuana has no medical benefits and is as dangerous as heroin.
“[Kavanaugh’s] view would be fatal [to cases like] the Alexis Bortell lawsuit of the constitutionality of the Controlled Substances Act,” White explained. “Part of her argument is that the Schedule 1 status is a violation of due process because it is not scientifically accurate. This pick would not buy that argument because he wouldn’t second guess the FDA.”
But that doesn’t make his stance radically conservative. In fact, when it comes to cannabis, White says Kavanaugh is basically the same as the Democrat’s last appointee to the Supreme Court.
“In this way, he is similar to [Merrick] Garland who shared similar views and judicial decisions,” White explained. “He is basically the right-leaning version of Garland.”
So cannabis consumers shouldn’t expect a radical shift in either direction on the marijuana issue if Kavanaugh’s appointment is approved by the Senate.The departure of longtime Supreme Court Justice Anthony Kennedy has casted uncertainty over American politics as commentators aren't sure what to expect from his proposed replacement, Brett Kavanaugh. While the fate of Roe v. Wade and gun control are uncertain, it seems likely that President Trump's nominee will uphold the status quo as far as the legal status of cannabis is concerned. ]]>