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Late last month, a U.S. appeals court rejected the arguments of state-legal cannabis companies seeking to overturn the federal government’s longtime prohibition of marijuana. The question now is whether the high court will agree to hear the current case—Canna Provisions v. Bondi—and if they do, whether the industry challenge might succeed. Some experts feel the court is likely to accept plaintiffs’ request and seize on the opportunity to return to Raich in the current era. Other observers are more skeptical the high court will hear the case.

Companies Challenging Federal Marijuana Prohibition Seek Supreme Court Review, But Will Justices Take The Case?

Jun 16, 2025

Ben Adlin

Marijuana Moment



Late last month, a U.S. appeals court rejected the arguments of state-legal
cannabis companies seeking to overturn the federal government’s longtime
prohibition of marijuana, the latest blow to the high-profile lawsuit
following a lower court’s dismissal of the claims.

But it’s hardly the end for the legal challenge, which since its filing in
2023 has aimed to reverse a more fundamental Supreme Court precedent. The
question now is whether the high court will agree to hear the current case—*Canna
Provisions v. Bondi—*and if they do, whether the industry challenge might
succeed.

It’s widely understood that the plaintiffs’ legal team, led by the
prestigious litigation firm Boies Schiller Flexner LLP, has long intended
the matter to end up before the nine justices. And in a recent email to
Marijuana Moment, attorney Jonathan Schiller all but confirmed that’s the
next step.

“It’s fair to assume,” he said, “that we shall seek Supreme Court review.”

One sign that at least some on court might be interested in taking the
appeal is a 2021 statement from Justice Clarence Thomas, issued as the
court denied review of a separate dispute involving a Colorado medical
marijuana dispensary.

In it, Thomas discussed a landmark 2005 Supreme Court ruling, *Gonzales v.
Raich*, wherein justices narrowly determined that the federal government
could enforce prohibition against cannabis cultivation that took place
wholly within California based on Congress’s authority to regulate
*interstate* commerce.

It may be time, Thomas’s comments seemed to suggest, to revisit *Raich*—a
move that could largely upend federal prohibition.

The statement pointed to policy developments since the earlier case was
decided, such as the hands-off enforcement approach taken by the Department
of Justice as more states legalized cannabis and a congressional budget
rider protecting state-legal medical marijuana programs.

“Whatever the merits of *Raich* when it was decided, federal policies of
the past 16 years have greatly undermined its reasoning,” Thomas wrote,
describing the government’s approach to cannabis enforcement as “a half-in,
half-out regime that simultaneously tolerates and forbids local use of
marijuana.”

“Though federal law still flatly forbids the intrastate possession,
cultivation, or distribution of marijuana…the Government, post-*Raich*, has
sent mixed signals on its views,” the justice continued, saying the
situation “strains basic principles of federalism and conceals traps for
the unwary.”

“One can certainly understand why an ordinary person might think that the
Federal Government has retreated from its once-absolute ban on marijuana,”
he wrote, suggesting that a “prohibition on intrastate use or cultivation
of marijuana may no longer be necessary or proper to support the Federal
Government’s piecemeal approach.”

The question of whether the U.S. government has authority to forbid
within-state cannabis activity as an extension of its power to regulate
interstate commerce also sits at the center of the current case. As such,
some experts feel the court is likely to accept plaintiffs’ request and
seize on the opportunity to return to *Raich* in the current era.

Erik Luna, a constitutional and criminal law professor at Arizona State
University (ASU), said he thinks plaintiffs—multi-state operator Verano
Holdings Corp. and the Massachusetts-based cannabis businesses Canna
Provisions and Wiseacre Farm, along with Treevit CEO Gyasi Sellers—are the
“the exact ones” needed to demonstrate that *Raich* was wrongly decided.

They’re entities that are affected by federal prohibition “and are part of
a regulated, controlled intrastate scheme,” he said.

“The reason the plaintiffs were picked is precisely because of the *Standing
Akimbo* case,” the professor noted, referring to the Colorado dispensary
dispute that prompted Thomas’s 2023 comments, “to demonstrate that, in
fact, the things that were of great concern to Justice Thomas—they are in
play in the Massachusetts team.”

Luna, whom Marijuana Moment was referred to through the plaintiffs’ legal
team, pointed out that Thomas is the senior justice on the Supreme Court
and the only sitting justice who was present when *Raich* was initially
decided.

“Many people call it the Roberts Court, just as they called it, before, the
Rehnquist Court, etc.,” he said, referring to Chief Justice John Roberts.
“But it’s the Thomas Court, right?”

“If it is the Thomas Court, in a sense,” Luna continued, “then I would not
be surprised if Justice Thomas would see a federalism case or a
structure-of-government case like this as the precise mechanism by which he
can show the vindication of individual rights by means of federalism and
structural constraints under the Constitution.”

But other observers are more skeptical the high court will hear the case.

“I think they likelihood that they’ll take it is extremely low,” said
Robert Mikos, a Vanderbilt University law professor who specializes in
federalism and drug law.

“This isn’t *Raich*,” he told Marijuana Moment. “This is a world apart from
*Raich*. You’ve got companies that are selling marijuana for profit. This
is commerce. If you want a vehicle for overturning *Raich*, this isn’t it.
*Raich* was just very different.”

Mikos and others noted that *Raich* centered on *noncommercial* cannabis
activity, specifically whether the federal government could criminalize
homegrown medical marijuana in California, where the drug was legal. That
could distinguish it from the current challenge.

“If this was a case brought by some individual who said, ‘I just want to be
allowed to grow this stuff for my own use in my backyard,’ you might get
the Supreme Court divided,” Mikos said, “because that’s closer to *Raich*.”

The Villanova professor said justices “would need to take a really extreme,
long-outdated view of the Commerce Clause to come out differently in this
case.”

“There was a brief period of time where the Supreme Court disastrously said
that the federal government couldn’t regulate even commerce that was
entirely confined within a state,” he acknowledged, “but the Supreme Court
rightfully jettisoned that view around the time of the New Deal. So you’d
have to roll back the clock and do something that would have really
far-reaching ramifications.”

Another professor, Douglas Berman, executive director of the Drug
Enforcement and Policy Center at Ohio State University’s Moritz College of
Law, also doubted the case’s chances of winning Supreme Court review,
calling them “slim to none.”

“I throw in ‘slim’ only because I don’t want to be absolutely wrong,” he
said. “You never about this stuff, but I have a hard time thinking how you
get to four votes for cert.”

Once plaintiffs file their forthcoming petition for a writ of certiorari,
it would need needs the votes of four justices to put the case before the
Supreme Court.

Berman told Marijuana Moment that he sees the Canna Provisions case as “not
a bad strategic choice” by the industry but also said he’s “long sensed
that there were opportunities, given the uniqueness of marijuana policy in
the country, to try to pioneer some new arguments” outside the case’s
Commerce Clause claims.

“The combination of the commerce piece and the risk of dramatically
restricting federal power writ large will make the more liberal justices
very disinterested in taking the case,” he predicted.

On *Raich*‘s way to the Supreme Court, Berman noted, there were separate
claims under the Ninth and 10th Amendments that fell out of the briefings
as the case proceeded. “Why not also develop arguments under other
constitutional theories?” he asked.

The legal team’s certiorari petition in *Canna Provisions v. Bondi* has yet
to be seen, meaning it’s possible plaintiffs will develop additional
arguments to bolster their case. Other parties may also file
friend-of-the-court briefs with further comments about whether justices
should review the matter.

Luna, at ASU, who has higher expectations for the challenge, said he
wouldn’t be surprised if the current Supreme Court is ultimately open to
reconsidering nearly a century of precedent and more severely limiting the
federal government’s power over intrastate commerce.

He pointed out that the *Raich* ruling itself stems from a 1942 Supreme
Court decision, *Wickart v. Filburn*, which said the federal government
could regulate the personal cultivation and consumption of crops due to the
aggregate effect of the activity on interstate commercial markets.

“To get down to the nitty gritty, it really is a choice about how much
power—given the text, context and history of our constitutional order—we
want to vest in the federal government?” Luna asked.

The current political and legal climate in the country has changed in
recent years, he added, which also complicates the calculus over what cases
the high court will hear.

“We’re in a new world order right now. Things have changed within the past
six months, seven months, eight months,” he said. “The notion that the
traditional rules about what cases the Supreme Court hears will necessarily
hold going forward, I’m not so sure that’s true.”

Even skeptics acknowledged that the drastically different makeup of the
high court since *Raich* was decided two decades ago makes the matter a
more open question. They said recent decisions around issues like abortion,
gun rights and presidential authority demonstrate justices’ willingness to
reconsider longstanding precedent.

Tim Swain, a Massachusetts-based partner at the cannabis-focused law firm
Vicente LLP, said he’s personally thinks there’s a “pretty decent chance”
the Supreme Court will deny review, but he admitted it would be hard to
tell a client what to expect in the case given how much turnover there’s
been on the bench since *Raich*.

“You’re always going to be asked by the client, ‘What is the chance of
success?'” he said. “In this case, if you’re being honest with them, you’re
going to say, ‘It’s hard to predict.’”

Regarding the Canna Provisions case, he said, the court would have to
“essentially have to ignore the commercial nature of the activity” in order
to rule for the plaintiffs, “which I think is not really going to be
possible.”

“It appeals on the surface, like this should be something that such a
conservative court would want to take on,” he told Marijuana Moment. “But
it doesn’t have the facts that are going to allow them to get where they
want the law to go.”

Like other skeptics, Swain said a noncommercial plaintiff might have a
better chance at winning review.

“If they were bringing this case on behalf of a medical-only operator, I
think there would be a greater chance that this case would get cert,” he
said, “but that’s not where the market is.”

“What everyone wants out of this case is a decision by the Supreme Court
that the [federal Controlled Substances Act] doesn’t apply to any
plant-touching company complying with state law,” the attorney explained.
“That would be phenomenal for the industry on so many different levels. It
wouldn’t be nearly as important or worth the effort if that decision were
limited to the medical space.”

Two other reasons the court may be hesitant to take the case, experts said,
are the ongoing federal rescheduling review of marijuana—which is currently
stalled amid a separate legal dispute—as well as the lack of any split
among federal appellate courts on the commerce clause issue.

Despite what he thinks are the case’s long odds, Swain was deferential to
attorneys in the case, saying that “they’ve gone about it, for what their
client wants, in the best possible way that they can.”

He also noted that for the businesses, there’s little on the line except
money. While a victory before the Supreme Court would be a massive win for
plaintiffs, a loss in the case might still be bearable: Whether the recent
First Circuit opinion stands or the Supreme Court denies the challenge, the
current legal landscape would remain unchanged.

“The only risk here is the money that it costs to bring this case,” Swain
said.

He predicted that at least part of the incentive for plaintiffs to bring
the current challenge was a feeling that cannabis reform at the federal
level had slowed, whether on tax issues, banking or legalization more
broadly.

“You’re frequently dealing with clients that come to you, they’re fed up
with the circumstances…the fees, the taxes, the whole system,” he said.
“They just want something done.”

Plaintiffs in the case either did not respond to direct requests for
comment from Marijuana Moment or referred questions to a public relations
team for the group. Lawyers for the companies did not comment other than to
confirm the likelihood of their forthcoming appeal effort.

David Boies, chairman of Boies Schiller, has a long list of prior clients
that includes the Justice Department, former Vice President Al Gore and the
plaintiffs in a case that led to the invalidation of California’s ban on
same-sex marriage, among others.

Luna said he had confidence in the attorneys: “In many ways this is reading
the tea leaves, but I wouldn’t bet against David Boies’s legal team.”

In the First Circuit’s upholding of a lower court’s dismissal of the case,
Chief Judge David Barron that the plaintiffs’ “reasoning would mean that
there would be a fundamental right to grow and sell any product that
founding era laws encouraged residents of that time to grow and sell”

“We decline to adopt a line of reasoning that would support” that
conclusion, he wrote.

The initial complaint, filed in U.S. District Court for the District of
Massachusetts, argued that government’s ongoing prohibition on marijuana
under the Controlled Substances Act (CSA) was unconstitutional because
Congress in recent decades had “dropped any assumption that federal control
of state-regulated marijuana is necessary.”

At oral argument on appeal late last year, Boies told judges that under the
Constitution, Congress can only regulate commercial activity within a
state—in this case, around marijuana—if the failure to regulate that
in-state activity “would substantially interfere [with] or undermine
legitimate congressional regulation of *inter*state commerce.”

Judges, however, said they were “unpersuaded,” ruling in last month’s
opinion that “the CSA remains fully intact as to the regulation of the
commercial activity involving marijuana for non-medical purposes, which is
the activity in which the appellants, by their own account, are engaged.”

The district court, meanwhile, said in the case that while the there are
“persuasive reasons for a reexamination” of the current scheduling of
cannabis, its hands were effectively tied by past U.S. Supreme Court
precedent in *Raich*.

Separately at the federal level, a pending Biden-era recommendation to
reschedule marijuana to the less restrictive Schedule III of the CSA is
remains stalled. Earlier this week, a key GOP-led House committee asked for
a review of the rescheduling recommendation, expressing concerns about
“deviations” from a prior review process as well as the “mental health
hazards of regular use of high-potency marijuana.”

Last month, former President Joe Biden’s drug czar said rescheduling
process may have been compromised officials within the Drug Enforcement
Administration (DEA), which was supposed to be defending the proposed
policy change. And a former Republican congressman raised questions about
the sincerity of the President Donald Trump’s endorsement of rescheduling
on the campaign trail.

What happens next in the process is uncertain, especially ahead of the
potential Senate confirmation of Trump’s pick to lead DEA, Terrance Cole,
who has declined to say whether he supports the proposal but has previously
voiced concerns about the dangers of marijuana and linked its use to higher
suicide risk among youth.

Trump, for his part, has not publicly weighed in on cannabis reform since
taking office, and the White House did not include rescheduling in a
recently released list of drug policy priorities for the administration.

Former DEA and Department of Health and Human Services officials have
separately expressed their views that, if rescheduling is going to happen, the
president will need to proactively demand its completion.

DEA recently notified an agency judge that the proceedings are still on hold—with
no future actions currently scheduled as the matter sits before the acting
administrator.

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*Photo elements courtesy of rawpixel and Philip Steffan.*

The post Companies Challenging Federal Marijuana Prohibition Seek Supreme
Court Review, But Will Justices Take The Case? appeared first on Marijuana
Moment.

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