The federal prohibition of cannabis may soon face its most significant challenge since its inception.
On May 27, 2025, the 1st U.S. Circuit Court of Appeals rejected a lawsuit by Massachusetts-based cannabis businesses seeking to overturn the federal ban on marijuana. The plaintiffs argued that the federal prohibition is outdated, citing Congress’s evolving stance and state-level legalization in 38 states, including Massachusetts. The court upheld the U.S. Supreme Court’s 2005 decision in Gonzales v. Raich, which affirmed Congress’s authority to criminalize marijuana possession under the Commerce Clause, even in states allowing medical use.
Jonathan Schiller, founding partner of Boies Schiller Flexner and chair of the board of trustees at Columbia University, who is representing the cannabis companies, said, “It is fair to assume that we shall seek Supreme Court review.”
Should the Court accept the case, it would mark the first time in nearly 20 years that the justices reexamine the constitutionality of marijuana prohibition.
Although most of the justices have not made public comments regarding cannabis laws, Justice Clarence Thomas has previously expressed skepticism about the federal government’s inconsistent approach to marijuana policy. In a 2021 statement, he argued that the federal prohibition on marijuana “may no longer be necessary or proper,” highlighting the contradictions in federal enforcement and the evolving legal landscape across states .
If the Supreme Court takes up the case, the three liberal justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—are likely to side with Justice Thomas in ending prohibition. This means that just one of the remaining five justices would need to agree to end the federal ban, potentially on personal freedom grounds, for prohibition to be put to an end.
Some legal experts believe the case stands a realistic chance of being taken up by the U.S. Supreme Court. Jesse Alderman, co-chair of the cannabis practice at Foley Hoag LLP, said the Court’s current makeup may be more receptive than in past decades, noting that several justices have shown “antipathy for how broadly…previous U.S. Supreme Courts have treated the Commerce Clause.”
The Commerce Clause has long been the constitutional basis for federal marijuana prohibition, including in the 2005 Gonzales v. Raich decision, where the Court ruled that Congress could ban even locally grown and consumed cannabis because it could impact interstate commerce. Critics argue this interpretation vastly overextends federal power, especially in today’s landscape where dozens of states have legalized marijuana. A narrower reading of the Commerce Clause by the Court could undermine the constitutional foundation of federal prohibition.
When it comes to the 2005 ruling from the Supreme Court that validated prohibition, attorney David Boies says the factual basis for the 2005 decision no longer exists, stating, “I think there can be no doubt that the predicates of that decision no longer exist.”
A realistic timeline for this process could see the Supreme Court deciding to hear the case in the coming months, with oral arguments potentially occurring in late 2025 or early 2026. A decision could then be expected by mid-2026, potentially making it a key issue for the midterm elections.
As the legal landscape continues to evolve, the Supreme Court’s potential review of the federal marijuana ban could mark a significant turning point in U.S. cannabis policy.
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