The nomination and confirmation of the Hon. Amy Coney Barrett to the United States Supreme Court has dominated the news cycle for the last several weeks. Given the Supreme Court's role at the top of one of the three branches of government, it is reasonable to wonder what impact Justice Barrett may have on the cannabis industry. That is an extremely broad issue which pulls from dozens, if not hundreds, of different subject matter areas - from federalism to interstate commerce to public policy. That said, attorneys have several tools at their disposal to gauge which way the wind may blow.
Before arguing a case before a particular judge, some attorneys research past opinions given by that judge on the subject-matter to be presented during argument. By doing such research the attorney may gain insight into whether the judge has a body of work related to the specific subject matter, or whether the judge may be considering it for the first time. One common research portal used by attorneys is Westlaw, by Thomson Reuters.
On October 27, 2020 Justice Barrett was sworn in as an Associate Justice of the United States Supreme Court. Justice Barrett has a profile page on Westlaw that provides a profile narrative, and her educational and professional background. The profile page also links to a references page which lists 660 items (as of October 29, 2020), including 626 cases. This does not mean that Justice Barrett participated in each case. For example, the most recent item is Republican Party of Pennsylvania v. Boockvar (U.S., Oct. 28, 2020, No. 20-542) 2020 WL 6304626. The only reference to Justice Barrett in that matter is in a preliminary statement that states, "Justice Barrett took no part in the consideration or decision of this motion."
That said, Westlaw provides a keyword search tool which may assist the inquiring attorney in finding past opinions or articles by the judge on specific issues or subject matter. Using that search tool it appears that Justice Barrett has few published judicial opinions specifically related to cannabis or marijuana. The search term "cannabis" returned only 4 cases. The search term "marijuana" returned 26 cases and 2 secondary sources - a panel discussion and a scholarly article in which marijuana is referenced in passing without comment.
A review of all returned cases revealed little about Justice Barrett's jurisprudential views on cannabis. The referenced cases were primarily criminal in nature and usually dealt with cannabis as an ancillary factual matter. For example, referencing marijuana possession with intent to distribute as an underlying offense where the issue before the Court of Appeal was an alleged error by the trial court in sentencing. In fact, Justice Barrett is credited as authoring opinions in only 4 of the cases: Morales v. Barr (7th Cir. 2020) 963 F.3d 629; United States v. Briggs (7th Cir. 2019) 919 F.3d 1030; Herrera-Garcia v. Barr (7th Cir. 2019) 918 F.3d 558; and United States v. Barnes (7th Cir. 2018) 883 F.3d 955 (not including per curium decisions, meaning decisions rendered by the court without a specific author.)
In sum, it appears from the foregoing that as a sitting judge, Justice Barrett's body of work related to cannabis and marijuana is limited. The attorneys at Huguenin Kahn LLP will follow Justice Barrett's career as the newest Associate Justice of the United States Supreme Court with great interest, especially whenever cannabis or the cannabis industry finds its way before the bench.
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