A coalition of state-licensed cannabis companies, represented by Boies Schiller Flexner LLP, has petitioned the U.S. Supreme Court to revisit the 2005 decision in Gonzales v. Raich — a ruling that upheld the federal government’s power to prohibit marijuana even in states where it’s legal.
In a petition for a writ of certiorari filed in October, led by litigator David Boies and partner Joshua Schiller, it argues that the legal and policy landscape has changed dramatically over the past 20 years. With 38 states now regulating cannabis and Congress repeatedly barring DOJ from prosecuting state-legal operators, the plaintiffs contend that continued federal prohibition is an unconstitutional overreach into states’ rights.
Boies Schiller’s filing marks a major moment in the decades-long tension between federal and state cannabis laws — and could open the door for a long-awaited reckoning on federal cannabis policy.
Asking the Supreme Court to Reconsider
Josh Schiller, who represents the petitioners alongside David Boies, explains that they started in Massachusetts, asking the District Court to let them try this case.
Massachusetts-based marijuana companies and industry leaders Canna Provisions, Gyasi Sellers, Wiseacre Farm and Verano Holdings are also involved, asking justices to reevaluate Gonzales v. Raich.
A U.S. appeals court rejected the arguments of the state-legal cannabis companies the firm is representing in May, according to Marijuana Moment, but the legal team intends the matter to end up before the nine high court justices.
“Now, we’re asking the Supreme Court to reconsider,” Schiller says. “It’s a 21-year-old case that was already quite controversial when it was decided and arguably decided incorrectly.”
Reshaping Federal Cannabis Policy
The initiative to bring this case to court started about five years ago, explains Schiller. “We began talking to legal cannabis businesses and how we wanted to work with them on the unfair treatment that many were experiencing in this growing industry.”
For years, governors and state legislators around the country were hindering the growth of the cannabis industry. Even today, many businesses can’t get small business loans and minority populations are at a disadvantage.
“We saw this mistreatment and discrimination towards a growing industry,” Schiller says. “It has an enforcement power that’s being recognized by the Supreme Court from a different era ─ at a time when cannabis was still stigmatized ─ but it’s so much different now than what it used to be. U.S. citizens deserve to have access to cannabis in a safe and regulated way.”
But to help reshape federal cannabis policy, they need to get the federal government on board. Four justices must vote to accept the petition for cert for the court to take up the case, though the next step is for the Department of Justice to file its initial brief, currently due by November 28.
“The federal government has a choice: they can either oppose our petition, or they can waive an opposition and not file a brief,” explains Schiller.
There is an opportunity within 30 days for amicus to file, according to Schiller. Amici are friends of the court who will file briefs either in favor of petitions or against it. Schiller expects there to be both.
“We’ll have some groups supporting our cause, and then we’ll have groups that think weed is a gateway drug and will oppose the petition,” he says. “After that, it will go to the Supreme Court. We expect at some point early next year that the case will go to the committee, and if four justices vote, the case will be heard next year.”
