Genetically Modified Justice: Why Did Elena Kagan Go to Bat for Monsanto’s GMO Alfalfa?


Is that a genetically modified grin?

Is that a genetically modified grin?

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 Co.

In a case that is currently being considered by the court, 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 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. The plaintiffs 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 Monssanto object to was issued by U.S. District Judge Charles Breyer, who ruled that under 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 when Kagan takes 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. In that case, the Obama administration was given the opportunity of dropping its predecessor’s case. 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.

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  1. Marc says:

    Have you been able to find out why this brief was submitted? Did Kagan just sit down one day and decide to take time out of her busy schedule to “go to bat for Monsanto’s GMO Alfalfa”? Or is it possible that there are significant legal implications for environmental law or USDA regulations or something else in the case? Or are there corporate forces that are undermining the independence of the office of the Solicitor General? I’m all for stronger regulation (or outright bans) of transgenic plants like the alfalfa in this case, but would like to see more about how this filing came to be, how the Solicitor General is connected to the legal policy making wing of the DOJ and President, before I’m convinced that Kagan went to bat for Monsanto.

  2. Rachel says:

    So what exactly is wrong with genetically modified food? Hasn’t a lot of what we eat now been genetically modified? Not trying to be snarky. I genuinely have no idea why people are against this.

  3. a. says:

    This is unfortunate, but blaming it on Kagan is also misguided. DOJ would have decided to appeal this based on consultation and with USDA and probably other agencies. Kagan is the tactical general, but not the commander-in-chief of the administration’s legal strategy.

    Also, as the first commenter speculates, this case has significant implications unrelated to GMO alfalfa — it has to do with the standard for “irreparable harm” resulting in an injunction under NEPA.

  4. KathyC says:

    Rachel, GMO frankenfood has been proven to be detrimental to all that it touches. Here… this site is a good place to start…

  5. rick says:

    Rachel, there’s a lot of info about why GMOs are bad, here is something i recently read:

  6. KD says:

    Rachel – A gmo or genetically modified organism is basically when you cross a species that would not normally reproduce together in nature. This is particularly bad in the case of Monsanto in which they have genetically engineered a soybean to be resistant to pesticides. It is said that when this is modified in the plant that we in turn could be ingesting the pesticides. It also is not highly regulated by the FDA or USDA so the modifiers have not been tested for long term effects. Basically not enough testing or research has been done to say that these foods are safe to eat. Watch the documentary Food, Inc. and you will realize other implications that companies like Monsanto who patent seeds has on the American farmer. Hope this helps!

  7. wigig says:

    I knew there had to be something sinister about her.

  8. leah says:

    @ Rachel I personally am against is because there has been very little research done on it effects on humans. Also, most of the people involved in getting these foods approved for public consumption are in some way or another related to Monsanto. It is about money, not the public’s health.

  9. amanda says:

    check out “Millions against Monsanto” link below

  10. Dana says:

    Um, the Government *was* a respondent – specifically, EPA, USDA and FDA, which are all responsible for regulating GMOs under a coordinated framework.

    The Solicitor General is the government’s lawyer. She is not an independent policymaker. Her job is to represent the government zealously according to whatever positions it takes. Criticize AG Holder all you like (and I do like!), but it’s no more reasonable to judge Kagan by this brief, than it is to say that a criminal defense lawyer is a supporter of crime.

  11. Susan says:


    Even if tests were done on the effects to humans, with Monsanto doing the tests, based on their history of deception and lies, people would die unnecessarily.

    In Europe, when the health damage was tested on lab animals, the animals often died within two weeks, and sometimes less. Lesions were identified in the gut (the immune system), and various organs. The stomach lining was different in animals who ate the GE crops. Ultimately, all animals died because of the process of genetic engineering. Listen to the videos done by Jeffrey Smith, and if you need more, read his books, beginning with Seeds of Deception. I just read the first chapter and couldn’t put it down!

    I also bought Genetic Roulette, which I understand has a lot of documentation.

    I worked for Obama when he was a presidential candidate. I gave hard earned money. NO MORE! He’s lied based on what he said when he was running. He did not bring back science. They are ignoring science in every agency. Perhaps, the science has still disappeared, because the Bush-Cheney Administration dismantled the library of the US EPA, other agencies, and even took important documentation from the National Library of Congress and the National Institutes of Health. But, I’m finding that the policies of Bush and Cheney, have continued for the most part under Obama his appointees tied to Monsanto. I wouldn’t be surprised if Obama did not go to work for Monsanto, but leave the USA for Europe where GMO’s are not grown..

  12. Susan says:


    BTW, when animals are given a choice, they will not eat GMO food. I left an ear of corn out for the coons. No one touched it. Even the rats did not touch it.

    When wolves ate deer or elk who grazed on fields that potentially grew GMO crops, the pups had severe health damage. They didn’t grow normally. The solution with the Obama Administration appears to be to shoot this Endangered Species, which was removed from the Endangered Species list during the Bush Administration for political reasons. What if they don’t want the science continue as to the health effects of genetic engineered crops to wildlife. If you kill off the predators that eat deer, or elk which have also eaten GMO crops, you eliminate the canary in the mine! This seems to be the mindset of the biotech-pesticide industry. Murder!

  13. Dr. J. Kreskie says:

    Elena Kagan, why why why?

    have you no soul?
    could money and power make you who you are. Your no better than
    Adolf Hitler,… he burned millions of people from the outside in… and you and Monsanto are burning millions of Americans from the inside out!

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