Judge Sotomayor, Where Will She Stand On Future Food Issues?

Photo from AP

At Obama Foodorama, the slightly obsessive website of all things food related to the president, they have got plenty of questions about Obama’s Supreme Court nominee, Judge Sonia Sotomayor. They foresee many food and agriculture cases coming to the fore in the near future:

There’ve been many Supreme Court cases related to food and Ag over the decades, but most of these have to do with trade and labeling disputes. But food, farming, and children’s nutrition are becoming an increasingly contentious set of issues, frequently decided in the court system, and in the future, there’s every chance that some of these cases will wind up on the docket of the Supreme Court. Interestingly, in a weekend C-Span interview on his projected Supreme Court appointee, President Obama directly referenced farmers:

I want a judge who has a sense of how regulations might affect the businesses in a practical way. And so, when they’re interpreting a statute that they are saying, is congressional intent being met in this kind of circumstance. So, if there is a farm program somewhere, and you have somebody who can take the time to learn about how farmers work that’s helpful….

Judge Sotomayor has tackled many food issues, both professionally and personally:

Was the President giving a hauntingly psychic, yet off-hand prediction of upcoming food fights? Was he merely pointing out the fact that food is Big Business in America? And how will Judge Sotomayor, who’s regarded as something of a moderate, vote on food issues? There’s a recent food case that Judge Sotomayor was involved with, and this could give a bit of a clue. In February, she voted to allow New York City to continue to require restaurants to post the calorie content of their food on menus, a hotly debated issue. That vote alone indicates, these days, a fairly progressive attitude toward food issues. And the fact that the Judge has publicly declared herself to have diabetes indicates that she’s already, on a personal level, critically aware of the role food plays in health, and all the ancillary issues that implies. And she’s said, on the record, that personal experience should sway the decisions of judges. Her childhood experience of poverty in the South Bronx could make Judge Sotomayor very sympathetic to children’s nutrition issues, should these ever land before the Supreme Court.

Obama Foodorama asks, what will the future hold for the Supreme Court in terms of food and nutrition legislation?

Would Judge Sotomayor be as likely to uphold a Soda Sin Tax as she was to enforce calorie regulations, or to uphold the new beer & wine taxes currently being considered on The Hill, if these ever came to a judicial challenge? How about banning salt, which is new CDC head Dr. Tom Frieden’s pet project? And how about, in an even larger food arena, banning the prophylactic use of antibiotics? There’s a Bill over this coming up for vote on the Hill, virtually as this is being written. And what about farm subsidies? The Obama Admin’s pledged intent to cap these has already caused various Ag State Senators to declare “war.” And that awful, decades-old racial discrimination suit against USDA, by the National Black Farmers Association, could well be headed for the Supreme Court, if the proposed $1.2 billion settlement for the black farmers gets dropped out of the 2010 budget. The question, particularly for food and Ag, is will Judge Sotomayor become part of a Court that’s interpreting the rule of law, or creating policy? In a 2005 speech, Judge Sotomayor suggested that the federal appeals courts “is where policy is made” — although she quickly backpedaled and said she was joking. None of it is really a matter for joking, though, when the President has himself said that he’s looking for an appointee with experience from outside the Ivory Tower, who will bring personal issues to bear on decision making.

She may have decided in favor of calorie counts on menus, but that was an issue of having easy access to food information. It was basically a Freedom of Information Act aimed at the restaurant industry. On privacy and information related cases, she has demonstrated thoughtful cost-benefit analysis in her decisions.

Tom Goldstein writes at the SCOTUS blog that, “during her years on the Second Circuit, Sotomayor has decided cases involving race, sex, age and disability discrimination. In these cases, she has often – but not always – sided with the plaintiffs.” So, perhaps we know how she would vote on the USDA vs. the National Black Farmers Association.

But, about the other cases involving food regulation…? The proposed cases for/against banning salt or increasing food ’sin taxes’ are a whole other ball game. Those are more about stricter business regulation and socioeconomic regulation of consumption (poorer, fatter people will consume less soda if the price goes up = hypothetically, less obesity). Is banning salt a civil rights, first-amendment issue? Is sin tax legislation worthy of a discrimination case?  Otherwise, we don’t have much compare to with consideration to Judge Sotomayor’s past cases discussed at SCOTUS.  In other words, as usual, we shall have to see.

Food (and) politics.  It really does matter.

May 27, 2009  Tags: , , , , ,   Posted in: Politics

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