Memo to the New Court: Let’s Avoid ‘Stupid’ Law

A former Supreme Court Justice once said, allegedly quoting Thurgood Marshall, that the Constitution doesn’t prohibit legislatures from enacting “stupid laws.” The only check on judicial ignorance or duplicity is engaged voters, says a commentator on drug issues.

Whatever we think of individual policemen, lawyers, or judges, we have a lofty idea of the Law itself, ingrained in us by noble if flawed depictions in the media or civics classes.

Although we talk of someone “escaping justice” due to a loophole or a technicality, by and large, we believe that if you’re not guilty, you won’t be arrested.

If by some mistake you are arrested even though innocent, you will not be convicted. And even when its execution is faulty, the Law is backed by principles of Justice, of fair play and, above all, finding the truth.

Until we run afoul of the law, anyway.

Then we remember that the Law is mostly about control, maintaining order, enacted by legislators who may have political or personal motivations and that it need not be fair or rational.

The Law is Allowed to be Stupid

Former US Supreme Court Justice John Paul Stevens said—allegedly quoting fellow former justice Thurgood Marshall, though I can find no attribution that doesn’t come by way of Stevens, who did not share in what context he may have made the statement—“The Constitution does not prohibit legislatures from enacting stupid laws.”

Just as one may be released for a constitutional violation by the police or courts that does not in itself show their innocence, so too, one who has been convicted may not have evidence of innocence considered if there is no constitutional violation.

On two occasions, Supreme Court Justice Antonin Scalia almost said that innocence is no reason to halt an execution or compel a lower court to consider new evidence. (Actually, he said “claims of innocence,” as in affidavits.)

Similarly, if a law is based on demonstrably incorrect beliefs, that’s not enough reason for the courts to overturn the law.

As one commentator put it, if the government can show that the law is “rationally related or legitimate” in serving its purposes … even if it is idiotic”, the courts will likely grant it deference. Many judges believe that is still in the purview of the legislators, and they are under no obligation to change the law to correspond with the facts.


Take marijuana, or cannabis as many proponents of legalization prefer to call it.

Under federal drug law, it is kept on Schedule I of the Controlled Substances Act, the most restrictive list, and so is considered irredeemable: It is, according to the law, extremely addictive. It has no medical use. And, even if it did (which the law says it doesn’t), it has no safe use even under the direct supervision of a physician.

As applied to marijuana, those assertions are demonstrably false. It’s not just anecdotal evidence either.

All of those contentions have been contradicted by scientific study:

  • Millions of Americans and others have used marijuana “safely”. They have suffered no health problems, continue to hold down jobs, raise families, and contribute to society. No one has ever died from an overdose of marijuana, as even the Drug Enforcement Agency has affirmed. That’s more than can be said for many drugs that are on Schedule II or III, such as the opioids driving the opioid epidemic, aspirin, or alcohol which isn’t anywhere on the CSA.
  • There is some doubt as to whether marijuana is addictive at all. If it is, it’s an extremely low risk of addiction, with none of the severe side effects withdrawal from most addictive substances entail. Some researchers and rehab facilities in California believe marijuana can replace highly addictive opioids such as oxycodone and hydrocodone for treatment of chronic pain, actually preventing addiction.
  • Medical use. Thirty states now recognize that marijuana has medical benefits and allow its use for a range of conditions, including chronic pain, anxiety, epileptic seizures, and post-traumatic stress disorder.

There are fewer protests that cannabis can’t help some patients with some health conditions. Judge Alvin Hellerstein of the Southern District of New York said, “We recognize now that there are medical purposes marijuana can be useful for.”

Hellerstein was hearing a lawsuit that argued it was irrational and unconstitutional to place marijuana on Schedule I. He clearly didn’t buy that part of the government’s argument but decided that wasn’t enough reason to compel the Congress or the courts to do so.

Instead, he dismissed the case, arguing the plaintiffs should have exhausted the administrative process, i.e. continued to petition the Drug Enforcement Agency (DEA) to reclassify marijuana.

Many plaintiffs have tried. In the eyes of even a sympathetic judge, they should just keep banging their heads against the wall.

One reason the DEA has given for keeping marijuana on Schedule I appeared in its 2017 Drugs of Abuse resource guide: “the U.S. Food and Drug Administration that has the federal authority to approve drugs for medicinal use in the U.S…. has not approved a marketing application for any marijuana product for any clinical indication.”

That has since changed. In June, the Food and Drug Adminstration approved Epidiolex, an epilepsy medicine for children derived from marijuana—specifically, from cannabidiol (CBD), a non-euphoric, non-psychoactive cannabinoid found in marijuana and hemp.

It won’t get you high, so it’s not the same as marijuana—except that as recently as May, the DEA considers CBD as illegal as marijuana, and persuaded a federal appeals court to agree. It appears that a case could be made that FDA now considers marijuana as medicine.

Drug Courts

Some drug courts have likewise ignored the facts when it comes to how to treat drug offenders.

Some send offenders, even if not themselves drug users or drug addicts, to drug rehab camps that are more like work camps. No rehab other than free physical labor. If perchance the inmate/patient tests positive for drug use while there, they instead go to a traditional prison for the full sentence, no second chance, no sentence reduction for time already served.

As a New York Times article expressed it, if addiction is a disease, as even the US Surgeon General’s office now agrees, why is relapsing a crime? Statistics and experts at the National Institute on Drug Abuse say that relapse is likely, as it is with any “chronic medical illnesses such as diabetes, hypertension, and asthma.”

A relapse may be a one-time event. It may not be a return to constant or regular drug use. Sure, some may be people trying to game the system and stay out of jail without ever intending to stop using, but this system penalizes almost all addicts for being addicts. How many times has it taken more than one attempt to quit smoking?

Travel Ban

Likewise, the Supreme Court has upheld the latest version of the President’s travel ban. Lower courts had stalled the immigration ban because as a candidate Trump had promised “a total and complete shutdown of Muslims entering the United States”, which would violate the Establishment Clause’s religious freedom protections.

Once in office, he said, “I’m establishing new vetting measures to keep radical Islamic terrorists out of the United States of America,” meaning the first version of his travel ban. Later, adviser Rudy Giuliani said, “When he first announced it, he said ‘Muslim ban.’ He called me up, he said, ‘Put a commission together, show me the right way to do it legally’”.

That sounds like Trump wanted a ban on Muslims from entering the country, and the only reason he doesn’t call it that is because he wants it to seem legal.

The Supreme Court said, no, that would be an unwarranted assumption.

“We cannot substitute our own assessment for the Executive’s predictive judgments on such matters”, said Chief Justice John Roberts. Besides, not all of the countries on the amended list are majority Muslim, and “The text says nothing about religion.”

Of course, the Court couldn’t have called President Trump before them and asked him, under oath, whether he intended the eight-nation immigration ban to be a Muslim ban – it only has appellate jurisdiction—but this seems like more than judicial restraint.

It seems like determined judicial ignorance or duplicity in disguise.

Is There a Solution?

Legislatures and chief executives can craft laws inelegantly, or deliberately obfuscate, but the question is when or if the courts should intervene. Like it or not, whether or not the laws are rational is not a legal ground.

The problem is not that the legislatures, executives, and judges aren’t rational, it’s that people aren’t rational. From smoking to overeating, drug abuse to pollution, personal relationships to personal finances, people are inconsistent, illogical, and with all the survival instincts attributed to lemmings.

All people make mistakes or betray hidden prejudices, but they don’t like to be told when they are wrong. They would rather double-down on their misconceptions—belief perseverance—and there’s no reason to believe judges are immune, and certainly not legislators.

The best remedy isn’t in the courts or the congresses, but the voting booth. Vote. Organize. Stay informed. Otherwise, all those other idiots will make decisions for you.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.