Elena Kagan, Clarence Thomas Both On Dark Side of Sci-Fi Alfalfa Fight

Alfalfa: Not yet genetically modified

The U.S. Supreme Court, which has nearly hacked Miranda to death, may very well swing its scythe at environmentalists and consumers. The court's making noises as if it will strike down the current ban on Monsanto's genetically engineered, pesticide-resistant alfalfa strain feared by tree-huggers and others.

Both Clarence Thomas and his possibly future colleague, Elena Kagan, are ex-Monsanto lawyers. Thomas has refused to recuse himself from the case despite his obvious conflict of interest, and Kagan has even filed a brief in support of Monsanto.

This is the biggest food controversy Thomas has faced since he found that pubic hair on his can of Coke.

The high court heard oral arguments on the case, Monsanto v. Geertson Seed Farms, in late April. The AP summed that up:

Supreme Court justices on Tuesday [April 27] sharply questioned a lower court's decision that has prohibited biotech giant Monsanto Co. from selling genetically engineered alfalfa seeds, possibly paving the way for the company to distribute the seeds for the first time since 2007.

The case has been closely watched by environmentalists and agribusiness. A federal judge in San Francisco barred the planting of genetically engineered alfalfa nationwide until the government could adequately study the crop's potential impact on organic and conventional varieties.

Handy-dandy guide to the case from ScotusWiki here. Organic consumers ripping Kagan here. Joshua Frank digging more dirt on Kagan and genetically engineered foods here.

Justice Stephen Breyer has recused himself from the case because his brother issued the 2007 original decision that's being appealed. But Thomas, who actually worked for Monsanto, is hearing the case. "Fox, meet henhouse," as Celsias puts it.

Meanwhile, Kagan, in her current job as Barack Obama's solicitor general, filed a strongly worded pro-Monsanto brief in the case, saying in part:

The issuance of a permanent injunction in this case was improper. The district court failed to find either that respondents had suffered or were likely to suffer irreparable harm or that legal remedies would be inadequate to compensate any harm respondents might suffer. . . .

This Court has repeatedly held that the mere fact of a statutory violation by a government agency does not establish irreparable injury.

"It's a good thing for Elena Kagan that there's no non-GMO litmus test for Supreme Court nominees. She'd flunk," says the Atlantic's Barry Estabrook.

Good stuff on the oral arguments from TAPPED:

[W]e did get some insight into how the justices are thinking about GM agriculture. In particular, we learned that Antonin Scalia does not think that cross contamination between conventional/organic crops and GM crops is "the end of the world."

To which the attorney for Geertson Seed Farms, one of the plaintiffs, offered the entirely appropriate and accurate rejoinder: "I don't think we bore an end-of-the-world burden, Justice Scalia."

E-mail Ward Harkavy