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 interstate 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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