Justice Neil Gorsuch published a book over the summer in which he criticized alleged government overreach, including in the country’s enforcement of a comprehensive criminal code. Yet he just missed an opportunity to tackle a federal criminal law called earlier when he was an appellate judge.
That law is known as the Analogue Act. It prohibits the sale of substances that are “substantially similar” to those already deemed illegal. The 1986 law was an attempt to so-called designer drugs who are entering the underground market faster than the government can ban them. The law gives the authorities a wide net, whose ambiguous form raises the question of whether it is not too wide for the Constitution, which is supposed warranty notice of what is illegal.
The vague and unscientific nature of the term “essentially similar”. several federal judges Unpleasant question its legality over the years; even chemists within the Drug Enforcement Administration have done so disagreed about its meaning.
The vague and unscientific nature of the term “substantially similar” has prompted several federal judges over the years to question its legality.
Gorsuch himself wrote critically of the Analogue Act while serving on the Denver-based 10th US Circuit Court of Appeals, before Donald Trump elevated him to the Supreme Court in 2017. In a 10th Circuit ruling, Gorsuch called the law “a curious animal” and said it was “after all an open question what exactly it means for chemicals to have a ‘substantially similar’ chemical structure – or effect.” He wondered “whether such terms allow fair application and give citizens fair notice.”
So it was reasonable to think that even if the Supreme Court declined to review a recent case challenging the law, Gorsuch would have said a word in passing. After all, on top of carrying out legal criticism of his own book a tourjustice has done that too pronounced in actual opinions on criminal cases before the Supreme Court has rejected appeals that he believed raised important issues.
But he was nowhere to be found at court declined to review on appeal on Tuesday the case by Charles Burton Ritchie and Benjamin Galecki. The federal judge who convicted them said he was worried that while a typical drug dealer “clearly knows he or she is selling an illegal substance,” someone accused of selling alleged analogues “may not know he or she is breaking the law until the jury decides it is in fact an analogue is.”
Gorsuch, meanwhile, is not bothered by the status quo. If so, he could have said so in an op-ed.
Maybe he’ll write about it in his next book.
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