Elena Kagan: Toward a Pro-GM Supreme Court?

More
estabrook_kaganB_5-12_post.jpg

Harvard Law Record/flickr


It's a good thing for Elena Kagan that there's no non-GMO litmus test for Supreme Court nominees. She'd flunk.

As solicitor general, Kagan is supposed to represent the interests of the American people in matters that come before the Supreme Court. Instead, she has gone to bat for Monsanto. In a case that the court is currently considering, Monsanto is trying to overturn a 2007 California decision that imposed a nationwide injunction on planting the company's genetically modified alfalfa. In March, Kagan's office interceded on Monsanto's behalf (click here for a PDF of its brief) even though the government was not a defendant in the appeal. The original suit was brought by Geertson Seed Farms and a collection of environmental groups, who claimed that pollen from Monsanto's Roundup Ready alfalfa could contaminate neighboring plots of conventional alfalfa, causing irreparable harm to Geertson's non-GMO business.

The decision that Kagan and Monsanto object to was issued by U.S. District Judge Charles Breyer, who ruled that during the Bush administration, the United States Department of Agriculture (USDA) should not have given its blessing to GM alfalfa without considering possible environmental, financial, and health consequences (a requirement under the law). Erring on the side of caution, Breyer said that until the USDA conducted the proper environmental assessment, no GM alfalfa could be grown.

The appeal that is now before the court has a telling aside. Justice Stephen Breyer recused himself from the case because Charles Breyer, the lower court judge, is his brother. Notably, Justice Clarence Thomas, who was once a lawyer for Monsanto, did not recuse himself.

The case will probably be decided this summer, prior to Kagan's taking up her new post, assuming she is confirmed. But she still might have an opportunity to show her true colors. Last fall, another lower-court judge ruled that the Bush-era USDA erred when it approved GM sugar beets without a proper environmental assessment. The Obama administration was given the opportunity to drop the USDA's case, but the Justice Department told the court that its position had not changed.

We'll see if Monsanto pursues that case through the appellate courts. Whatever happens, it's all but certain that the Supreme Court has not heard the last of GMOs.

Jump to comments
Presented by

Barry Estabrook is a former contributing editor at Gourmet magazine. He is the author of the recently released Tomatoland, a book about industrial tomato agriculture. He blogs at politicsoftheplate.com. More

Barry Estabrook was formerly a contributing editor at Gourmet magazine. Stints working on a dairy farm and commercial fishing boat as a young man convinced him that writing about how food was produced was a lot easier than actually producing it. He is the author of the recently released Tomatoland, a book about industrial tomato agriculture. He lives on a 30-acre tract in Vermont, where he gardens and tends a dozen laying hens, and his work also appears at politicsoftheplate.com.
Get Today's Top Stories in Your Inbox (preview)

A Wild Vacation in the Pacific Northwest

A not-so-ordinary road trip, featuring extra-tall art bikes, skateboards, and hand-painted vans


Elsewhere on the web

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register. blog comments powered by Disqus

Video

Adventures in Legal Weed

Colorado is now well into its first year as the first state to legalize recreational marijuana. How's it going? James Hamblin visits Aspen.

Video

What Makes a Story Great?

The storytellers behind House of CardsandThis American Life reflect on the creative process.

Video

Tracing Sriracha's Origin to Thailand

Ever wonder how the wildly popular hot sauce got its name? It all started in Si Racha.

Video

Where Confiscated Wildlife Ends Up

A government facility outside of Denver houses more than a million products of the illegal wildlife trade, from tigers and bears to bald eagles.

Video

Is Wine Healthy?

James Hamblin prepares to impress his date with knowledge about the health benefits of wine.

Video

The World's Largest Balloon Festival

Nine days, more than 700 balloons, and a whole lot of hot air

Writers

Up
Down

More in Health

Just In