How Marijuana Smoking in Florida Could Affect the U.S. Supreme Court

Nothing will stop Rick Scott, the popular Republican governor of Florida with aspirations for the US Senate and beyond, in his quest to prevent his citizens from smoking marijuana.

His intransigence now has implications for the upcoming struggle over Donald Trump’s first appointment to the United States Supreme Court — yes, Scott’s attitude towards smoking weed has implications for gun-control, abortion rights and immigrant detention — and is also energizing marijuana legalization advocates to push forward to allow all adults in Florida to use the drug, in any form.

And that could in turn also affect voter turnout in Florida in the 2020 presidential election. In nearly every realistic scenario, anyone who wants to be president has to win Florida. Thus, it is not an exaggeration to say that Scott’s personal issues with people smoking marijuana has serious implications for every American. Heavy stuff, but true.

Medical cannabis has been legal in Florida since more than 71 percent of voters approved a ballot initiative at the November 2016 election. Since then, cannabis advocates — including the initiative’s original sponsors — have been locked in a near-continuous struggle with Scott, state lawmakers and health regulators in order for patients to be able to actually use medical marijuana.

The voter initiative, Amendment 2, was thin on details. Filling those in was left to lawmakers. On the last day of the 2017 legislative session, the Florida Legislature approved and Scott signed into law a set of rules governing cannabis that, among other things, banned marijuana in smokeable form in favor of tinctures and topicals.

That “violated the intent” of the voter initiative, according to prominent Orlando trial attorney John Morgan, who filed suit on behalf of a Tallahassee-area strip-club owner to allow Florida patients to smoke their cannabis.

In May, a district judge sided with Morgan and overturned the ban. The state — and Scott — swiftly appealed, arguing that to allow Florida patients to smoke “goes against what the Legislature outlined when they wrote and approved Florida’s law.”

“[There] are various other forms of medical marijuana presently available and approved [or permitted]… in Florida for qualifying patients,” the state argued in brief filed on June 12, according to the Orlando Sentinel. “For example, vaping or vaporization of marijuana flower is permitted for medical use, so long as the flower is in a sealed, tamperproof receptacle.”

At some point later this year, the question will go before the Florida state Supreme Court, where the state’s lawyers — that is, Scott’s lawyers, in his official capacity as governor — will actually argue that most people don’t consider cannabis a smokeable product.

Depending on how that process goes (and how willing either Scott or Morgan will be to press the issue) there is reason to believe that the question of what form most people consider marijuana to be used could go before the US Supreme Court.

But in the meantime, Scott has an election to win. He is currently about four points behind sitting U.S. Senator Bill Nelson, a Democrat, in what is one of the most closely watched — and potentially most impactful — Congressional races in the country.

If Nelson wins and the Democrats pick up just one more seat somewhere else, the Republicans’ razor-thin majority in the Senate is gone. Supreme Court justices need to be approved by a majority in the Senate. If the Democrats win back the Senate, Donald Trump’s nominee for the court — whomever it may be — may suffer payback for the Republicans’ filibuster of Barack Obama’s nominee, Merrick Garland. Obama nominated Garland to fill a vacant seat on the court — and you may recall that Sen. Majority Leader Mitch McConnell led an effort to keep the seat vacant until Trump was elected.

And hovering over all of this is the smoking marijuana question, which has become a campaign issue. Nelson is not an idiot and shortly after the lower Florida court overturned the smoking ban, he wisely told reporters that, yeah, patients in that state should smoke if they want to, like they can in California, Michigan, Arkansas — yes, Arkansas! — and most everywhere else medical marijuana is legal.

“I don’t want a government or a politician to get in the way of a doctor recommending what should be the treatment, the medical treatment, for that doctor’s patient,” Nelson said. “That’s just not right, and therefore, yes, I support, and have with my vote, medical marijuana recommended by a physician.”

As the Tampa Bay Times wrote, this is now a handy wedge issue for Nelson — and considering marijuana’s obvious popularity among Florida voters, its value is obvious.

In this way, Scott’s position on marijuana smoking could cost him a Senate seat. That could cost the Republicans the Senate, and in turn, could cost Trump the chance to lock in a conservative court for the next 20 to 30 years. Whether he figures this out in time — and whether he adjusts accordingly has implications for every Florida who uses cannabis, as well as Americans who have not yet been born.

TELL US, do you think cannabis laws should allow for smoking?