Justice Neil Gorsuch published a book over the summer in which he critiqued perceived government overreach, including in the nation’s enforcement of an expansive criminal code. Yet he just passed up a chance to address a federal criminal law that he previously called out when he was an appeals court judge.
That law is known as the Analogue Act. It bans selling substances that are “substantially similar” to ones that have already been deemed illegal. The 1986 law was an attempt to combat so-called designer drugs that enter the underground market faster than the government can ban them. The law gives the authorities a wide net, one whose ambiguous shape raises the question of whether it’s too wide for the Constitution, which is supposed to guarantee notice of what’s illegal.
The vague and unscientific nature of the term “substantially similar” has prompted multiple federal judges to question its legality over the years; even chemists within the Drug Enforcement Administration have disagreed about its meaning.
The vague and unscientific nature of the term “substantially similar” has prompted multiple federal judges to question its legality over the years.
Gorsuch himself wrote critically of the Analogue Act when he was on the Denver-based 10th U.S. Circuit Court of Appeals, before Donald Trump elevated him to the high court in 2017. In a 10th Circuit ruling, Gorsuch called the law “a curious animal” and said it was “an open question, after all, what exactly it means for chemicals to have a ‘substantially similar’ chemical structure — or effect.” He wondered “whether terms like those will admit of fair application and afford 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 might have offered a word in passing. After all, on top of performing legal criticism on his book tour, the justice has also spoken out in actual criminal case opinions when the high court has rejected appeals that he believed raised important issues.
But he was nowhere to be found when the court declined to review an appeal Tuesday in the case of Charles Burton Ritchie and Benjamin Galecki. The federal trial judge who sentenced them said he was troubled 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.” Gorsuch, meanwhile, isn’t troubled by the status quo. If he was, then he could’ve said so in an opinion. Maybe he’ll write about it in his next book. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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