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In the matter of "Standing Akimbo, LLC, et al., v. United States" (https://www.supremecourt.gov/orders/courtorders/062821zor_6j37.pdf at around page 28), Justice Thomas attached a statement to a denial of certiorari.

Not a lawyer, I'm just trying to understand exactly what this statement is/means/represents. As I understand it, the appellate decision was that the IRS is permitted to compel state authorities to surrender information it wants on this marijuana dispensary. The writ of certiorari then was an attempt to get SCOTUS to overturn that, correct? Which they have denied, hence effectively supporting the government's stance on cannabis.

So, with that in mind, this statement is kind of a rant (totally righteous IMO, FWIW) on why the US position toward cannabis is incoherent and inconsistent.

Assuming all that is correct, what is the function of the statement? Is it a "yeah, this sucks and the US position is ridiculous but you're stuck with it"? Or a "dissent" from the denial of certiorari?

And is it normal for there to be a statement associated with a denial of certiorari?

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I'd say it's more like a concurrence than a dissent. Justice Thomas isn't saying the Court should have taken the case; he's just raising question about the (implicit) reason the Court isn't taking the case.

Most experienced observers will read the statement as a signal that he is open to reversing Raich and hoping that someone will bring the right case in which to do that. But in the end, t amounts to pure commentary and has no legal effect.

The practice of filing these types of statements is not "normal," as the Court rejects probably more than 95 percent of the cases that come to it, and it does so without comment. But it is hardly unprecedented to see these types of statements, and I assume that every justice (except perhaps Barrett, given her recent arrival) has made similar statements. From a quick search, I can find statements from Alito, Thomas, Gorsuch, and Kavanaugh, from Roberts, and from Breyer.

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  • Ok. Thanks for the answer. I've read the ones you linked at casetext.com -- the lexis ones require a login I don't have. What I see in each of the ones I can see is a reasonably clear statement of "this is why we're denying certiorari" (or why I disagree with the court's decision to deny). The instant one just seems odd in that Thomas never really explains how his discussion on the muddy state of the law applies to the denial in this case. Jun 29 at 18:53
  • Yes, I'd agree that Thomas never makes explicit why he thinks denial may or may not be appropriate, so it's unusual in that regard. I've also fixed the link to that first case.
    – bdb484
    Jun 29 at 19:29

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