The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The answer, of course, is raisins, from today's Horne v. Dep't of Agriculture:
Raisins are not dangerous pesticides; they are a healthy snack….
Raisins are not like oysters ….
To be sure, the Court isn't denying the possibility that oysters too are a healthy snack (at least in months with the letter "r").
The statements actually make perfect legal sense in context. In the first, the justices were distinguishing takings of raisins from forced public disclosure (and thus loss) of trade secrets related to pesticides, and suggesting that such destruction of property rights may be appropriate for matters that involve serious dangerous to health but not in other contexts. In the second, the justices were distinguishing raisins from wild animals (sorry, feræ naturæ), such as oysters, in which a state can claim to have a property right. (All the justices except Justice Sotomayor joined these parts of the majority opinion.)
And indeed the "healthy snack"/"not oyster" analysis offers an interesting illustration of how the Supreme Court sometimes distinguishes different kinds of property and activity for constitutional purposes, including both the Takings Clause and the Fourth Amendment. Consider, for instance, today's administrative search case, City of Los Angeles v. Patel, which distinguishes liquor sales, firearms dealing, mining, and running a car junkyard from other businesses—such as the hotel business—that don't "pose a clear and significant risk to the public welfare." Indeed, a similar distinction seems to be present in the Court's criminal law cases dealing with the definition of strict liability offenses. There could be a law review article there.
But the cool thing is that raisin manufacturers can now quote the Supreme Court's endorsement on their boxes. It'll make them millions, I tell ya.