Oral arguments are winding down for the Term, with the major cases on same-sex marriage and death penalty protocols to close out the season next week.
Today, though, in Horne v. Department of Agriculture, about the government’s regulation of the raisin market, we’ll get a New Deal history lesson, go harvesting for Maryland oysters, check in on drought conditions in California, and have a brief reference to that 1980s commercial and pop culture hit, the California Raisins.
All that flowed naturally in a sometimes fun hour about whether a federal agricultural “marketing order” for raisins that requires the transfer of a portion of a raisin crop to the government amounts to a taking that requires just compensation.
As the argument gets going, I am still a bit bleary-eyed from staying up until 2 a.m. to watch a Stanley Cup playoff hockey game that went into triple overtime. So it’s a good day to examine one facet of the very active questioning by the Justices (well, eight of the nine) during arguments.
It is what I’ll call “verbal face-offs” among the Justices.
Like hockey centers who battle intensely over the drop of a puck, members of the Court sometimes have to fight to gain control of the floor (the ice?) to pose a question to the lawyer before them. (Granted, it’s not a perfect fit of an analogy.)
Michael W. McConnell opens his arguments on behalf of California raisin farmers Marvin D. Horne and his wife, Laura, among others.
“Thank you for being willing to hear this case a second time,” he says. “It does involve some important principles and the livelihoods of Marvin and Laura Horne, and more indirectly, hundreds of small California raisin growers will be profoundly affected.”
(The case was here two years ago on a narrower question of jurisdiction.)
He is soon interrupted by Chief Justice John G. Roberts, Jr., and Justice Ruth Bader Ginsburg, both trying to ask a question at the same time. The Chief Justice relents, and Justice Ginsburg asks McConnell what specifically about the raisin marketing program the Hornes find objectionable.
It is the first verbal face-off of the day. Score one for the Notorious RBG.
A short time later, Justice Sonia Sotomayor asks how this case is different from Leonard v. Earle, a 1929 decision that upheld Maryland’s tax of ten percent of the oyster shells harvested by farmers. (The shells were useful in maintaining oyster beds.)
Oysters are wild animals, and they are the property of the state, he says. “[R]aisins are not wild animals, even if they’re dancing,” he says. The Courtroom laughs, and most of the Justices grin. Everyone loves the famous California Raisins of the 1980s.
A short time later, Justices Sotomayor and Elena Kagan both try to ask a question at the same time. Justice Kagan, who as the most junior Justice often gives way in such face-offs, doesn’t this time. She wins the face-off and asks McConnell about whether having to turn over business records to the government is the same as turning over part of a raisin crop.
Such records are not taken permanently by the government, he says. McConnell, a former federal appeals court judge, has no doubt won his share of verbal face-offs on appellate panels, and at one point today he even fends off a Justice’s question for a bit to complete an answer.
Justice Stephen G. Breyer tells McConnell that he has a question about “a curlicue on the case,” regarding fines assessed by the government. But he quickly withdraws the question, as he is known to do.
“I don’t think I’ll ask it,” Breyer says. “I’ll figure it out myself. I’d like you to reserve your time.”
Breyer has had a verbal face-off with himself, and it’s a draw.
When Deputy Solicitor General Edwin S. Kneedler steps to the lectern to defend the raisin regulatory program, Justice Antonin Scalia is soon stomping on him like grapes in a vat.
“These plaintiffs are ingrates, right?” Scalia says. “You’re really helping them?”
“You say it’s one little feature of an overall program,” Scalia continues. “That little feature happens to be the taking of raisins.”
In the gallery, the people sitting on each side of Marvin Horne turn to each other and smile in appreciation at Justice Scalia’s sarcasm. Horne looks intensely toward the bench.
In response to Kneedler’s arguments that “the government can attach reasonable conditions on [those] entering a stream of commerce,” Justice Samuel A. Alito, Jr., asks whether there is any limit to that argument.
“There are some examples in the briefs that are pretty startling,” he says. “Could the government say to a manufacturer of cellphones, you can sell cellphones; however, every fifth one you have to give to us? Or a manufacturer of cars, you can sell cars in the United States, but every third car you have to give to the United States?”
When Kneedler says that would be different because the raisin marketing order is part of a “comprehensive regulatory scheme,” there appears to be a three-way verbal face-off among Chief Justice Roberts, Justice Alito, and Justice Anthony M. Kennedy. Justice Kennedy wins.
“So, you say if the government took all GM’s cars, then it would be okay?” he asks Kneedler.
When the deputy solicitor general says no, the Chief Justice challenges what he perceives as the government’s theory of the case, that “this is for the good of the people whose property we’re taking.”
Kneedler notes that “these programs go back to the 1930s, when the agricultural industry in this country was in serious trouble. And particularly in California, prices were below costs of production.”
The Chief Justice says the government could do what it does with most other marketing plans, which is to not take the agricultural product in question.
“This is different because you come up with the truck and you get the shovels and you take their raisins, probably in the dark of night,” the Chief Justice says.
There are a few more verbal face-offs. Justice Scalia wins one over Justice Breyer, who turns his head in slight exasperation. Next, the Chief Justice wins one over Justice Kennedy.
In only one face-off today, between Justice Breyer and Justice Kennedy, does the Chief Justice feels compelled to step in as the umpire (or hockey referee). “I’m sorry—Justice Kennedy,” he rules.
The last face-off comes as Justice Kagan asks Kneedler whether the government must convince the Justices that the raisin marketing order is sensible for it to be upheld.
“I mean, we could think that this is a ridiculous program, isn’t that right?” she says.
“You could think that this is a ridiculous program, but it is one that has been around since 1949,” and ruling that it amounts to a taking would have broad consequences, Kneedler says.
Both Justices Ginsburg and Scalia follow up at the same time. Justice Scalia wins this last face-off, and Justice Ginsburg turns her head in the direction of her dear friend, as if to yield the floor.
Scalia didn’t feel any need to wait for that acknowledgment, leaning forward to tell Kneedler, “It doesn’t help your case that it’s ridiculous, though. You acknowledge that.” (Kneedler would not.)
A little later, McConnell is wrapping up his rebuttal time when the Chief Justice asks, “This is probably neither here nor there, but what has the impact of the drought been on the raisin producers?”
“It is not good,” says McConnell, who is now a professor at Stanford Law School, in a state imposing restrictions on water use.
“I wonder if I’ll be able to take a shower when I go home,” he concludes.
Today though, in trying to win over the Justices, it seemed as though McConnell barely needed to break a sweat.
CLICK HERE FOR FULL VERSION OF THIS STORY