The Supreme Court of the United States — minus the late Justice Scalia — is set to take up the hot-button issue of marijuana legalization today in a highly watched case.

The SCOTUS is hearing a challenge to Colorado legalization from two neighboring states Nebraska and Oklahoma as plaintiffs. The states are arguing that because of legalization, marijuana is unlawfully crossing over their borders. The federal Controlled Substances Act should override state legalization, they argue, under the Supremacy Clause of the Constitution.

Justice Scalia’s death alters equation

But SCOTUS is unlikely to take up Nebraska and Oklahoma v. Colorado, watchers say, partially because the plaintiffs’ case is so weak, and partially because one likely supporter of the case, Justice Scalia, is dead.

“It’s hard to predict where a given justice is going to come down on anything,” according to Tom Angell, in an interview with the International Business Times. Angell founded the cannabis advocacy group Marijuana Majority, and analyzed Scalia’s record on cannabis for Marijuana.com. “But my best guess is Nebraska and Oklahoma probably just lost one of their votes for granting the review.”

With the nine-member SCOTUS down to eight, the vote for review could be 4-4, and a tie would favor the defendant Colorado. Legal experts say plaintiffs Nebraska and Oklahoma lack standing.

“The plaintiffs can’t show they could be helped by a positive decision in their favor,” Sam Kamin, marijuana law professor at the University of Denver, told IBT.

The federal government itself does not support review, and the solicitor general urged the Supreme Court to deny the lawsuit.

Potential for rare SCOTUS deadlock

If SCOTUS takes up review and ties on the case, it would only be the third time in U.S. history for a so-called ‘original jurisdiction deadlock’.

The first time, in 1870, the case remained up in the air for nearly three years. The second time, in 1953, the court ruled one way, only to overrule itself a year later. … In other words, no one knows exactly what will happen if the Supreme Court takes up the Colorado lawsuit and then can’t come to a majority opinion on it.

Still legal experts doubt SCOTUS wants to potentially shut down medical and recreational legalization in 35 states.

“There is so much very, very high-profile stuff on pause right now, my gut instinct is they are going to say, ‘We don’t need anything else on our plate,’” Kamin told IBT.

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