Analysis

A portentous constitutional issue hung in the air Wednesday as the Supreme Court examined government seizures of private property, and everybody seemed to want to have it decided.  But it was almost totally lost in a fog raised by a perplexing array of minutiae about how the government tries to push up the price of raisins.  The cloud was so thick that even a highly respected professor and former judge misspoke twice in describing his clients’ role.

The case was Horne v. Department of Agriculture (12-123), and it began with Michael W. McConnell, now of Stanford Law School and formerly a judge on the Tenth Circuit Court, saying that the case had “a surprising number of difficult merits issues working.”  But it quickly descended into baffling complexity when Justice Sonia Sotomayor jumped in to try to sort out whose property was taken, if anybody’s was, and whether the seized property was raisins or money.   Actually, said McConnell, representing California vineyards, it was both.

It was left to Justice Antonin Scalia to provide a quip that might have provided some clarity: what was going on, he said, was a kind of government stick-up, “Your raisins, or your money.”   Justice Elena Kagan almost topped that, by suggesting that maybe the Court should let the Ninth Circuit Court figure out whether the government’s raisin-regulation program amounted to an unconstitutional “taking” of private property, or “was the world’s most out-dated law.”

The government has been regulating the marketing of California raisins (the source of almost all the raisins that Americans consume) for the past sixty-four years, but until McConnell’s clients decided a decade ago that they no longer wanted to go along with the program, its constitutionality had never seemed in doubt.  And the task that now falls to the Supreme Court is to decide who could raise that issue, and in which court.  Wednesday’s hearing made abundantly plain that neither is a simple issue.

The government scheme, like several others that date from the Great Depression era, is to keep a part of each year’s crop of dried grapes (raisins) off of the market, so that the part that goes to market will bring higher prices for the growers.  It is a program that is not aimed at the vineyards in their capacity as the growers of the grapes (technically, “producers”), but rather at those who actually put the raisins up for sale (the “handlers”).

It was, perhaps, not at all surprising when McConnell twice referred to his clients as “producers” when he clearly meant “handlers” (and he promptly corrected himself), because the Agriculture Department along the way has treated them as both, and there was no firm indication that any of the nine Justices was really clear on which was which.  It was in the vineyards’ capacity as “handlers” that the Department hit them with a $483,843.53 civil fine for not transferring a part of two years’ worth of crops into the government’s off-market bin — a fine to which the very same vineyards would have been immune in their capacity as “producers.”

As the case reached the Supreme Court, the looming constitutional issue — one with a potential impact far beyond the raisins program — is whether a government imposition of a civil fine can amount to a seizure (that is, a “taking”) from the company or individual ordered to pay the fine.   The Ninth Circuit Court, in the decision the Justices are reviewing at the request of McConnell’s clients, first decided that this was not a “taking,” but then decided that it shouldn’t have decided that at all, because the vineyards were supposed to have gone to a specialized court, the U.S. Court of Federal Claims, with their complaint.

In one of the points Wednesday when a bit of clarity seemed within reach, Justice Stephen G. Breyer (who often asks questions with multiple layers of complexity) suggested simply that the raisin program is either constitutional or it’s not, and “it rather seems to me that it is not a right fit for the Court of Claims.  Am I wrong about that?”

The thought passed largely unrewarded, because the Agriculture Department’s lawyer, Assistant to the Solicitor General Joseph R. Palmore, suggested that the vineyards had simply been negligent in not going to the Court of Federal Claims earlier and implied that they should not be complaining now.  (Later in the argument, Chief Justice John G. Roberts, Jr., who lately has been somewhat hard on the Solicitor General’s lawyers appearing in the courtroom for switching legal positions, would tell Palmore that it was not a gesture of grace to blame the vineyards now for neglecting a legal point, when the Department had switched positions in the midst of the Ninth Circuit’s review.)

The very argument by the Agriculture Department that caused the Ninth Circuit to change legal approaches in midstream, that the vineyards’ case was in the wrong court as a jurisdictional matter, has since been abandoned — even as the Department still maintains that the Claims Court is where this case should be now.

Palmore had come to the lectern not so much to enthusiastically defend what the Ninth Circuit had done as to caustically accuse the California vineyards in the case of being scofflaws.  He repeatedly argued that they had “willfully and intentionally” flouted the rules of the raisin marketing program in order to gain “an unfair competitive advantage.”   His underlying point seemed to be that they deserved no sympathy from the Court.

Although, as the hearing moved along, there seemed to be (perhaps quite understandably) a developing sense among the Justices that maybe the case should just go back to the Ninth Circuit for another try, and Justice Ruth Bader Ginsburg commented that even that maneuver was a “mysterious thing” about the case.   The Circuit Court, she noted, had already decided the case on the merits (before switching to the ruling that it had no jurisdiction), so what would there be for the Circuit Court to do next?

She had put the question to McConnell, who recounted the vineyards’ grievance of how they had been treated by the Circuit Court (he earlier had called it a “Catch 22″), and then commented that what the Circuit Court had done had provided everyone with “so much entertainment this morning.”

Posted in Horne v. Department of Agriculture, Analysis, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument recap: If only it were simple…, SCOTUSblog (Mar. 20, 2013, 1:00 PM), http://www.scotusblog.com/2013/03/argument-recap-if-only-it-were-simple/