Thomas spent a week in the hospital being treated for an infection, the Supreme Court’s public information office said. He was discharged on Friday.
Thomas asked numerous questions in cases heard Tuesday, using a telephone hookup from home. He will participate in the decisions in the cases he has missed by reading briefs and the transcripts of those oral arguments.
Thomas’s release from the hospital coincided with reports that the congressional committee investigating the insurrection at the U.S. Capitol on Jan. 6, 2021, had copies of texts his wife Virginia Thomas exchanged with then-White House chief of staff Mark Meadows. Virginia Thomas, known as Ginni, urged Meadows not to give up an ultimately fruitless legal battle against Joe Biden’s election victory over President Donald Trump.
Legal ethics experts said the exchanges raise serious concerns about the propriety of Justice Thomas participating in cases about the election or the Jan. 6 insurrection.
The court’s decision to take the pork case came after months of consideration, as the justices begin to build their docket for the next term.
In 2008, California voters approved Proposition 2, the Prevention of Farm Animal Cruelty Act, which banned three forms of animal confinement: “gestation crates” for pregnant pigs, veal crates for calves, and cages for egg-laying hens. But it did not prohibit sales of food derived from animals confined in those ways.
Ten years later, voters took that additional step in Proposition 12. They sought to “prevent animal cruelty by phasing out extreme methods of farm animal confinement, which also threaten the health and safety of California consumers, and increase the risk of food borne illness and associated negative fiscal impacts on the State of California.”
Pork producers sued, saying the law dictates changes to pork producers outside the state, who supply most of the pork consumed in the nation’s largest state.
“Californians account for 13% of the Nation’s pork consumption, but raise hardly any pigs,” the National Pork Producers Council and the American Farm Bureau Federation told the Supreme Court in their brief.
“The massive costs of complying with Proposition 12 fall almost exclusively on out-of-state farmers. And because a single pig is processed into cuts that are sold nationwide in response to demand, those costs will be passed on to consumers everywhere, in countless transactions having nothing to do with California.”
That is an assumption of power that violates the Constitution, they said.
Lower courts have disagreed. The U.S. Court of Appeals for the 9th Circuit said the ban does not discriminate against out-of-state farmers and that it regulates “only conduct in the state, including the sale of products in the state.”
California and the Humane Society noted other states have similar restrictions, and that large consumers of pork such as Burger King and McDonald’s already are insisting on changes to the confinement practices, which can confine sows into pens so small the animal cannot turn around.
The case is National Pork Producers v. Ross.
In the Warhol case, the court will consider a copyright dispute over images Warhol created in the 1980s.
The Warhol images are based on a photograph that Lynn Goldsmith took of Prince in 1981. She said the work violates her trademark on the photo.
The U.S. Court of Appeals for the 2nd Circuit ruled for Goldsmith, saying that Warhol had not substantially changed Goldsmith’s photograph into something completely new.
The Andy Warhol Foundation for the Visual Arts asked the Supreme Court to step in, saying the work was a “set of portraits that transformed a preexisting photograph of the musician Prince into iconic works commenting on celebrity and consumerism.”
The foundation said the appeals court ruling “casts a cloud of legal uncertainty over an entire genre of visual art.”
The case is Andy Warhol Foundation v. Goldsmith.