In the obituary for the late Henry Lind, the reporter of the Supreme Court, was this interesting nugget:

In 1986, with an increase in the number of cases involving pot, Mr. Lind pushed the justices to decide how to spell the word “marijuana” — with an “h” or “j.” Although Mr. Lind reportedly suggested that the court “just use cannabis,” the justices voted to change the Court’s style to the more modern “j” spelling.

Mr. Lind reported the result: Four justices favored the “j” spelling, one voted for the “h” spelling, three cast him as their proxy and one justice abstained.

So which Justices voted which way? 1986 is a tricky year, because depending when the question was asked, we would have either CJ Burger or a young Justice Scalia.

I did a search for “marihuana” between 1985 and 1987. I found none later than February 1986, which suggests the change was made before the start of OT 1986, so Nino would not have been on board.

In 1985 and 1986, who spelled it marihuana? There were a total of five opinions.

I found three by O’Connor, one by Stevens, one by CJ Burger. My guess is that it was Justice O’Connor who insisted on spelling it marihuana.

File this in the department of irrelevance.

Update: Apparently this is not so relevant. Tony Mauro wrote about this issue in 1986, and also wrote a letter to the Greenbag in 2008 (when I think I was a student of Ross Davies) documenting a letter the Reporter of Decisions sent to Justice Marshall about the spelling of marijuana/marijuana, and subsequent polling of all the Justices.

Unbeknownst to me, but confirmed by documents in the Thur- good Marshall papers at the Library of Congress (Box 378, Folder 2) the article got noticed inside the Marble Palace. Reporter of Deci- sions Henry Lind sent a copy to the justices, along with a memo de- tailing the spelling preferences of several dictionaries. He asked the justices to vote on how to spell the cannabis-bearing plant. A few days later, Lind reported the results: four justices favored “j,” one favored “h,” and three gave Lind their proxies, which he cast in fa- vor of “j.” Lind declared the issue resolved: “[T]he spelling from now on should be a ‘j.’ I hope that this will settle the matter.”

In the letter, Lind writes:

A majority vote will control (I hope there won’t be a “splintered” vote).

And it splintered:

There were four votes for “marijuana,” one vote for “marihuana,” and three Justices gave me their proxies, which I have case for “marijuana.”

Well done Tony!

H/T Michelle Olsen (the quickest twitterer around)