The subject was raisins, but at times it felt as though the New Deal were on trial at the Supreme Court on Wednesday.
Liberal justices generally defended a government program that may require a certain percentage of the nation’s raisin crop be turned over to the government as part of a plan to stabilize prices.
“The object of the program is, at least in general, to give farmers more compensation than they would have without it,” said Justice Stephen G. Breyer.
Conservative justices generally considered the raisin reserve an unconstitutional taking of property without compensation — “probably in the dark of night,” Chief Justice John G. Roberts Jr. said hyperbolically — and questioned the idea that government knew what was best for farmers.
“Central planning was thought to work very well in 1937, and Russia tried it for a long time,” said Justice Antonin Scalia.
Because there are more conservatives than liberals on the court, the odds look good for Marvin and Laura Horne, who were fined nearly $700,000 for not complying with the program from 2002 through 2004.
It was the Hornes’ second trip to the Supreme Court to contest the program, and Justice Elena Kagan tried to set up the question for the rest of the court.
“We could think that this is a ridiculous program,” Kagan said. But “the ridiculousness or sensibleness of a program is really not for us to decide.”
When Deputy Solicitor General Edwin S. Kneedler agreed, Scalia piped up again: “It doesn’t help your case that it’s ridiculous, though.”
Kneedler contends it is not ridiculous at all. Congress enacted the Agricultural Marketing Agreement Act to regulate markets in order to stabilize prices, and the Raisin Administrative Committee was established in 1949 to govern California raisins, which make up 99.5 percent of the domestic market.
Raisin producers send their crop to raisin “handlers” — packagers — who are instructed by the committee to set aside a portion that will not make it to the open market. That portion is sold through other channels, such as on the international market or to school lunch programs, and any profits are distributed to the producers. Sometimes there are no profits.
The Hornes, who are growers in Fresno, set themselves up as handlers and bought raisins for others. But they declined to turn over the specified portions, and they were fined.
The Hornes’ lawyer, Stanford law professor Michael W. McConnell, said the Constitution requires that when government takes someone’s property, there must be just compensation.
“They’re told to set aside the raisins and give them to the government. So here there is a taking,” McConnell said.
He acknowledged that there are other government programs that seek to accomplish the same goals by reducing the volume that a farmer may produce.
Breyer agreed what occurred seemed like a taking but wondered about the compensation part.
The government was not taking the raisins and giving farmers nothing, he said; they benefited from the higher prices.
“This program, what it does is it gives raisin farmers, at the public’s expense, more money,” Breyer said. “So if, in fact, you don’t want us to take your raisins, all right, fine. But there’d be no program if everybody said that. So we have a rule against free riders.”
Kneedler got tough questioning from the moment he stepped to the microphone and said, “The raisins are not put into the program for the benefit of the government. They are put into the program for the benefit of producers.”
Scalia said sarcastically: “These plaintiffs are ingrates, right? You’re really helping them?”
Justice Samuel A. Alito Jr. worried about how the vastness of government’s power.
“Is there any limit to that argument?” he asked. “Could the government say to a manufacturer of cellphones, you can sell cellphones; however, every fifth one you have to give to us?”
Roberts said the government could achieve its price-support objectives “just as you do in most other cases, through volume limitations that don’t require a physical taking. . . . We’re here dealing with a classical, physical taking.”
Kneedler countered that the government does not keep the raisins. “It just tells the handler to keep them and sell them later, rather than selling them now, and that is not an appropriation of private property.”
In fact, Kneedler said the best evidence that government is looking out for producers is the fact that in almost all of the eight to 10 programs that allow for reserves, the government is not using its power. Market conditions have made it unnecessary for raisins since 2010, he said. The only currently covered crop is tart cherries.
The case is Horne v. Department of Agriculture.