Why Merrick Garland should go to hell

Paul Danish/Sue France

When it comes to marijuana, Merrick Garland, Obama’s Supreme Court nominee, deserves a special place in hell.

A place where every night demons wearing Drug Enforcement Administration (DEA) T-shirts kick in his door, yank him out of bed and drag him off to jail through broken glass. Every night from here to eternity.

Obama’s retainers, including his toadies in the mainstream media, are describing Garland as a “centrist,” who will have a “calming” influence on the court.


On marijuana, Garland is no centrist. He cast the key vote in a case that, had it gone the other way, would have forced the DEA to reclassify marijuana from a Schedule 1 controlled substance (which puts it in a class with heroin) to something more in keeping with reality.

The case, Americans for Safe Access, Et Al. v. Drug Enforcement Administration, was decided on January 22, 2013 by a three-judge panel of the U.S. Court of Appeals in Washington, D.C. Senior Circuit Court Judge Harry Edwards wrote the majority opinion, which sided with the DEA. Judge Karen Henderson wrote a dissent. Garland voted with Edwards, casting the swing vote.

The mainstream media is trying to down-play the practical effect of the ruling, saying all it would have done is make it easier to study the potential health benefits of pot.

The truth is that had the decision gone the other way, it would have transformed the federal government’s treatment of marijuana, possibly even removing it from the Controlled Substances Act entirely.

Some background is in order here: The Controlled Substances Act, which outlaws pot at the federal level, currently treats marijuana as a “Schedule 1” controlled substance, the Schedule supposedly reserved for the most dangerous drugs, like heroin.

(There are five Schedules; cocaine and methamphetamine are on Schedule 2.) The act also gives the U.S. Attorney General authority to add, relist or delist the various drugs regulated under the act in the light of new evidence. The process starts with the DEA.

In 2002, the National Organization for the Reform of Marijuana Laws filed a petition calling on the agency to start hearings to reassess marijuana’s Schedule 1 classification.

The DEA sat on the request — for nine years.

Finally, in May 2011, NORML filed suit in Federal Court to force the DEA to act. Within two months the DEA acted; it posted a letter brusquely denying the petition.

That denial led to the case in which Garland’s vote tipped the balance.

Briefly the plaintiffs in the case argued that the classification of marijuana should be reconsidered because 1) “numerous peer-reviewed scientific studies demonstrate that marijuana is effective in treating various medical conditions” and 2) that the enactment of medical marijuana laws by 20 states together constitute new evidence that the DEA should consider.

The core of the DEA’s argument in the case was that marijuana shouldn’t be reclassified because there were no “adequate, well-controlled studies” demonstrating marijuana’s safety and effectiveness as a medicine. The DEA defined “adequate and well-controlled studies” as the sort of double-blind studies the Food and Drug Administration requires for approval of a new drug — the sort that can cost hundreds of millions of dollars and can go on for years, and still get it wrong sometimes.

Judges Edwards and Garland bought the DEA’s argument — conveniently ignoring the fact that the reason there were weren’t any studies that rose to Food and Drug Administration standards was that deliberate, on-going DEA policy has made it virtually impossible to conduct them.

Nor did the court give a rip about the DEA’s deliberate nine-year delay in even considering NORML’s rescheduling request before turning it down — which, it turns out, was the third time the DEA had subjected a rescheduling petition to the same sort of shabby treatment.

It’s this last failure to which I attach the most importance in considering Garland’s fitness for the Supreme Court.

Most of us learned in middle school that justice delayed is justice denied. Evidently brother Garland never got the memo.

Presumably, there’s a reason they call Supreme Court judges “justices” instead of judges. The title implies that the job description involves going beyond the games lawyers play and paying a decent respect to the consequences and justness of their decisions.

And Garland’s contemptible vote in the Americans for Safe Access case did have consequences. In the three years since the decision came down, roughly 1.5 million more Americans have been arrested for marijuana.

Which is why I think Garland should go to hell instead of the Supreme Court.

This column does not necessarily reflect the views of Boulder Weekly.