When the framers of the Constitution created the Supreme Court, they did so to balance the power of the president and Congress — but they likely didn’t envision the Supreme Court as it is today. The nine justices of the 21st century wield extreme power; in fact, the Judicial Branch as a whole is increasingly being viewed as undemocratic by both the Left and the Right, largely for the court’s abilities to affirm rights not codified in the Constitution and for the court’s ability to strike down legislation passed by Congress.

Yet, some special interest groups are eager for the courts to hold onto their power, at least until certain cases are heard. Cannabis activists, in particular, are wondering whether the Supreme Court could bypass all the dithering of Congress and the limp wrists of the president to legalize weed nationwide — but the truth is that the Supreme Court as it currently stands probably wouldn’t affirm a right to cannabis even if it could.

How the Supreme Court Could Legalize Weed

The Constitution is remarkably terse on the topic of the Supreme Court. Though this most powerful court in the land, the leader of the Judicial Branch of the government, is meant to check and balance the powers of the president and Congress, the article that creates the Supreme Court says only this:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

Article III does not outline what type of person is allowed to serve on the Supreme Court; it doesn’t explain how the Supreme Court will make its rulings, and it doesn’t determine how those rulings can affect policy in the Federal Government or the states. In Section 2, the Constitution does outline the jurisdiction of the Supreme Court — which is essentially any case involving the United States government.

This lack of clarity has ultimately allowed the Supreme Court to make its own rules, an opportunity that dozens of Supreme Court justices have jumped on. Among the most interesting developments over the past 250-plus years is that of judicial review, which allows the justices to evaluate legislation and executive activity for conformity with the Constitution. Essentially, judicial review allows just five people — a simple majority of justices — to overturn federal and state laws.

The Supreme Court has employed judicial review too many times to name, but there are a couple good examples of this process working in favor of those with progressive points of view. Harper v. Virginia Board of Elections saw the court striking down a Virginia law imposing poll taxes on state elections, which gave more people the opportunity to have a voice in their local government. In Roe v. Wade, they ruled to eliminate a Texas abortion ban, calling the government restriction unconstitutional. And now, plenty of people want the Supreme Court to use judicial review to take another look at federal cannabis prohibition, with the hopes that the Court would finally cast them aside.

Why This Court Probably Won’t

The Roberts Court (named for the current chief justice, John Roberts) is one of the most conservative courts in recent history. Though the Supreme Court is supposed to be divorced from politics and able to operate without expectations from Right or Left parties, the truth is that more conservative presidents have been able to fill empty seats in recent years, resulting in a court that isn’t exactly friendly to the idea of looser drug regulations.

Already, the Roberts Court has had the opportunity to hear a case concerning cannabis policy — and it has declined. In June 2021, the Court decided not to review a case from Colorado in which a Denver cannabis dispensary challenged the local tax code provisions. As a result, the Court has allowed its 2004 decision in Gonzales v. Raich to stand. Unfortunately, this means the Court seems content to allow federal cannabis prohibition to continue, even if the Executive Branch is disinterested in enforcing its own bans.

There is one unlikely dissenter in this opinion on federal cannabis law: Clarence Thomas. When the Roberts Court passed on the Colorado cannabis case, Thomas issued an opinion stating that he believed federal cannabis laws to be inconsistent and outdated. This has come as a surprise to so many cannabis activists because Thomas is among the most conservative justices on the bench. If Thomas sees the benefit of eliminating federal cannabis prohibition, perhaps the other conservative justices might change their ways in the coming years, too.