The recent lawsuit between Nebraska, Oklahoma, and Colorado, which could potentially challenge the legality of marijuana in Colorado, has raised questions about how the late Justice Antonin Scalia might have ruled on the matter. Scalia, known for his strong stance on states’ rights and privacy, significantly impacted marijuana laws nationwide during his tenure on the Supreme Court.

Scalia’s opinions on privacy issues directly influenced the evolving landscape of marijuana laws. In 2001, he ruled that law enforcement could not use thermal imaging devices without a warrant to detect marijuana growers from a distance. In 2013, he asserted that police could not employ drug-sniffing dogs to incriminate individuals for marijuana cultivation in their homes without first obtaining a search warrant.

However, it’s important to note that Scalia’s opinions in these cases primarily focused on an individual’s right to privacy rather than the broader question of marijuana’s legality. When Scalia visited Colorado in 2014, he was questioned about the conflict between Colorado’s marijuana and federal laws. In response, he invoked the Supremacy Clause, which allows federal law to supersede state law. Furthermore, Scalia ruled against medical marijuana (MMJ) patients in a 2005 case, asserting that the federal government could prosecute them.

Had Scalia been alive to participate in the lawsuit challenging Colorado’s marijuana laws, his opinion might have tilted the scales against legalization. Legal scholars speculate that if the Supreme Court had decided to hear the case rather than dismiss it, Scalia’s vote could have resulted in a 5-4 decision against marijuana legalization. His strict adherence to a constitutionalist approach and the presence of the Supremacy Clause might have led to the dismantling of Colorado’s marijuana industry.

However, predicting how any specific Supreme Court Justice would rule in a given case is challenging, and the political landscape surrounding marijuana has been evolving in favor of legalization. With Scalia’s passing, the case may have resulted in a 4-4 tie, allowing the lower court’s ruling to stand and preserve Colorado’s marijuana industry.