A private conference to discuss a lawsuit filed by Nebraska and Oklahoma about Colorado's legalized marijuana sales was scheduled for March 4, 2016. Four justices must vote in favor of hearing the case for the court to take it. Pictured: The American flag flies at half-staff in front of the U.S. Supreme Court on Feb. 19, 2016 in Washington, D.C., after the death of Justice Antonin Scalia. (Drew Angerer, Getty Images)

No decision by Supreme Court on Colorado marijuana case

Justices scheduled to conference on lawsuit over pot by Nebraska and Oklahoma

Updated March 7, 2016 at 10:38 a.m.

The U.S. Supreme Court did not make a decision Monday on whether to hear a lawsuit brought against Colorado over marijuana legalization.

The nation’s highest court had been scheduled on Friday to privately discuss the lawsuit, brought by the neighboring states of Nebraska and Oklahoma. But a list of Supreme Court orders released on Monday made no mention of the case.

Nebraska and Oklahoma say Colorado’s licensing of marijuana stores impermissibly conflicts with federal law and creates burdens for them by increasing the amount of pot coming across their borders.

Because the lawsuit involves a dispute between states, it was filed directly to the Supreme Court. The first step in the lawsuit is for the justices to decide whether they even want to consider the suit.

The case had twice before been scheduled for private conferences, so it is unclear whether justices actually discussed it as planned at their Friday meeting. The case has now been pending for more than a year.

Last year, Colorado Attorney General Cynthia Coffman said she thought the justices would make a decision in January on whether to hear the case. But legal experts say the Supreme Court may be wary of taking on high-profile cases while operating with only eight justices, following the death of Justice Antonin Scalia.

John Ingold: 303-954-1068, jingold@denverpost.com or @johningold



Previous reporting below:

The U.S. Supreme Court may finally be nearing a decision on whether to hear a case brought against Colorado by two neighboring states over marijuana legalization.

Supreme Court justices were scheduled to meet privately on Friday to discuss the case, which was filed in 2014 by the attorneys general in Nebraska and Oklahoma.

The justices won’t have decided at the meeting whether to upend legalization in Colorado, as the lawsuit requests. Instead, the justices must first decide whether even to take up the case.

Their decision could be announced as early as Monday. But Sam Kamin, a professor at the University of Denver who specializes in marijuana law and who has followed the lawsuit closely, said there are no guarantees the justices even got around to talking about the case on Friday. The court had twice before scheduled to discuss the case at conferences, only for the discussion to be pushed back.

“We just don’t know what’s going on behind the scenes,” Kamin said.

In the lawsuit, Nebraska and Oklahoma ask the Supreme Court to overturn Colorado’s system for licensing marijuana businesses, which was part of the state’s 2012 initiative that legalized cannabis. The neighboring states argue the commercialization allowed in state law impermissibly conflicts with federal law, and they say marijuana flowing across Colorado’s borders has created a burden for them.

Colorado officials defended the law’s legality — saying it doesn’t negate the federal government’s ability to criminalize pot. The Obama administration also urged the Supreme Court not to take the case.

Because the case involves a dispute between states, the lawsuit was filed directly to the Supreme Court. Four justices must vote in favor of hearing the case for the court to take it. If that happens, it starts a likely years-long process of filings and arguments before a final decision is reached.

Kamin said it is unclear what impact the death of Justice Antonin Scalia will have on the case. At a speech in Boulder a couple months before the suit was filed, Scalia seemed to support its general argument.

“[T]he Constitution contains something called the Supremacy Clause,” he said about marijuana, referencing the provision that says federal law tops state law when the two are in direct conflict.

Kamin said the Supreme Court may also shy away from taking big cases while operating with only eight justices.

This story was first published on DenverPost.com