The highest court in the land

Opinion by Chelsea Priest
May 7, 2015, 8:06 p.m.

Most cases arrive at the Supreme Court after a long journey through the lower courts.  But every once in awhile, in rare circumstances, the Supreme Court is asked to take the first (and, of course, last) swing at resolving a case. These cases fall within the Court’s “original jurisdiction” (as opposed to its more common appellate jurisdiction). This division between original and appellate jurisdiction arises from the text of the Constitution itself and has been further enshrined in a federal statute.

By far the most common instance in which the Supreme Court exercises its original jurisdiction is in cases between states. Indeed, not only does the Court have original jurisdiction over such cases, it has exclusive jurisdiction, meaning the only court in which states may sue each other is the Supreme Court. In other words, states couldn’t litigate their disputes in lower courts even if they wanted to. These state v. state cases most commonly arise in the context of water or land disputes. But recently the Court was presented with a case arising in a different area of law. Nebraska and Oklahoma essentially asked the Court for permission to sue Colorado over its legalization of marijuana.

Nebraska and Oklahoma allege that they have had to expend extra resources as a result of Colorado’s recent legalization of marijuana. Specifically, they argue that Colorado’s legalization and regulatory scheme has resulted in people traveling to Colorado, buying marijuana, then leaving the state with the contraband. Indeed, one report found that traffic traffic stops resulting in seizure of Colorado-sourced marijuana bound for other states increased 592 percent between 2009 (before medical marijuana was legalized in Colorado) and 2014.  Neighboring states, like Nebraska and Oklahoma, then have to deal with an influx of drug offenders, resulting in higher expenses for officers, jails, courts, etc. Colorado, on the other hand, has been raking in the profits, and is expected to bring in $94 million per year in marijuana tax revenues by 2016. In fact, Colorado has taken in so much marijuana-related revenue that it actively debating what to do with the excess. Other states are understandably miffed that they are shouldering the cost while Colorado reaps the benefits.

Some people, including a Colorado legislator, have proposed sharing Colorado’s marijuana revenues with neighboring states to offset those states’ increased enforcement costs. But that approach has been pushed aside in favor of litigation—in addition to the recent filing in the Supreme Court, at least two other cases are ongoing in lower courts. All three cases allege that Colorado’s law conflicts with the federal Controlled Substances Act, which criminalizes marijuana. Under the Supremacy Clause of the U.S. Constitution, they argue, Colorado’s law is therefore unconstitutional.

Especially in light of the ongoing litigation in lower courts, there is a serious question as to whether it is necessary (or appropriate) for the Supreme Court to make use of its original jurisdiction in this context. Indeed, one of the factors the Court considers in deciding whether to exercise its original jurisdiction is whether it would be possible for the issues to be litigated in a lower court (even if not necessarily in direct litigation between the states). In this instance, challenges to Colorado’s regulatory scheme have already been brought by citizens of Colorado, a nonprofit organization opposed to recreational marijuana, and a group of sheriffs and county attorneys from Colorado and Kansas. It would seem, then, that these issues could be resolved without going to the Supreme Court as a first resort.

The chances of the Court agreeing to hear the case seem slim. Parties only rarely invoke the Court’s original jurisdiction, and the Court employs it quite sparingly. Since 1960, the Court has received fewer than 140 requests for the Court to hear original jurisdiction cases, and the Court has only agreed to hear slightly more than half of those cases. This reluctance to use original jurisdiction is understandable in light of the fact that original jurisdiction places the Court in the unusual position of having to act as a trial court. That is why, in most original jurisdiction cases, the Court employs a “special master” to act as a sort of trial court judge, whose job it is to hear the evidence and then submit reports and recommendations for the Court to adopt.

In any event, Nebraska and Oklahoma have now asked the Court to hear the case, and the Court will have to answer. The Court has put off that question for the moment, though. On Monday, the Justices called for the views of the Solicitor General (a procedure known as a CVSG), which means that the Solicitor General’s Office will now formulate and present the federal government’s official position on whether the Court should hear the case.  Early indications suggest that at least the Department of Justice isn’t anxious to challenge Colorado’s marijuana laws, having told Colorado’s Governor in late 2013 that it would not seek to do so, at least “not at th[at] time.” Whether that position has changed in the intervening year and a half remains to be seen. But with the Court asking for an opinion, the government will be forced to pick a side, which could have a broader policy impact for federal drug enforcement across the nation.

Michael Mestitz is the president of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s managing editors. Contact them at mmestitz ‘at’ and cayres ‘at’

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