Elena Kagan: Toward a Pro-GM Supreme Court?

Barry Easterbrook

May 12 2010

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.