While we put the finishing touches on our full write-up of last week's oral arguments in Horne v. U.S.D.A., No. 14-275 (we posted our initial thoughts after attending the Court's session here), here are other summaries of the arguments:
Stay tuned. As promised, we'll have our complete view of the arguments posted soon.
- "Supreme Court justices appear ready to rule against California raisin board" from the Los Angeles Times, isn't a purely objective view of the case, and the "meta-message" (the Hornes are ingrates for challenging a program that benefits them) comes through loud and clear. The report also misunderstands the relief which the Hornes seek: "While it appeared clear a majority will side with Horne, it is not clear what this means for other farm products, or even what compensation he is due." We hope this misconception doesn't carry over to the Justices, since the Hornes are not seeking just compensation in this action, and only argue that the fines which the USDA seeks to impose cannot be levied because to do so would be a taking. The Court addressed and rejected the "compensation is the remedy" argument the first time this case went up.
- "Supreme Court Grills Government Lawyer Over USDA ‘Central Planning’ in Raisin Confiscation Case" by Damon Root at Reason also has a viewpoint, and highlights Justice Scalia's reference to Soviet-era central planning. He too predicts that a majority of the Court will come down for the Hornes.
- Our colleague Alan Ackerman writes "Raisins and Takings; an Interesting Mix" on his firm's blog. Alan is "surprised that the Solicitor General did not take the position that this akin to a “tax” and therefore a valid part of legislative process. This would fall in line with the five-person majority in the Obamacare case. However, here a Justice of the Obamacare majority seems to fall in line that there may indeed be a taking when there is a required set-aside for raisin cultivation. One can readily see Justice Breyer finding the taking, but questioning the damages (just compensation). This case is one in which the derisive nature of the Supreme Court’s questioning can only lead one to believe that the long-maintained, whether constitutional or not, statute is to be set aside for failure to pay just compensation for a 'taking.'"
- The New York Times also noted the Justices' overall tone ("With scorn bordering on anger, some of the Supreme Court’s more conservative members on Wednesday gave a hostile reception to a government program dating to the Great Depression meant to increase raisin prices by keeping some raisins off the market."). See "Supreme Court Hears Appeal in Raisin Case."
- In "The Horne Case and the Public Trust in Wildlife," lawprof John Echeverria saw a silver lining in the arguments, hoping that the Court would "revive" the applicability of the public trust argument in wild animals ("So, Professor McConnell’s effort to distinguish Leonard should fail and the Supreme Court arguably should affirm the Ninth Circuit’s rejection of the takings claim in Horne based on this venerable precedent. But the equally tantalizing possibility is that the Court might embrace McConnell’s argument and thereby revive the concept of public trust ownership of wild animals."). The Hornes argued otherwise because, you know, there's a difference between the raisins that the Hornes cultivate and the wild oysters at issue in the 1929 Leonard case.