Amity Shlaes Responds on Schechter Poultry

Justice Gorsuch was right to rely on her account of Schechter Poultry in "The Forgotten Man"

|The Volokh Conspiracy |

Recently, the Supreme Court decided Gundy v. United States. This case considered whether a provision of the Sex Offender Registration and Notification Act (SORNA) violated the nondelegation doctrine. Justice Kagan's controlling opinion found that it did not. Justice Alito concurred in the judgment. However, in the appropriate case, he would be "willing to reconsider the approach we have taken for the past 84 years." Justice Gorsuch wrote a dissent on behalf of Chief Justice Roberts and Justices Thomas. (Justice Kavanaugh had not yet joined the Court when Gundy was argued.) Justice Gorsuch found that the provision of SORNA did violate the nondelegation doctrine. Moreover, he cast serious doubt on how the Supreme Court's jurisprudence in this area has developed over the past seven decades.

In his analysis, Justice Gorsuch recounted the facts of A. L. A. Schechter Poultry Corp. v. United States (1935). The so-called Sick Chicken Case found that the enforcement of the National Industrial Recovery Act violated the nondelegation doctrine. He wrote:

Included in the code was a rule that often made it a federal crime for butchers to allow customers to select which individual chickens they wished to buy. Kosher butchers such as the Schechters had a hard time following these rules. Yet the government apparently singled out the Schechters as a test case; inspectors repeatedly visited them and, at times, apparently behaved abusively toward their customers. When the Schechters finally kicked the inspectors out, they were greeted with a criminal indictment running to dozens of counts. After a trial in which the Schechters were found guilty of selling one allegedly "unfit" chicken and other miscellaneous counts, this Court agreed to hear the case and struck down the law as a violation of the separation of powers.

Here, Gorsuch cited a well-known book about the New Deal: The Forgotten Man by Amity Shlaes.

Harvard Law Professor Mark Tushnet criticized Justice Gorsuch for relying on Shlaes's work. He also alleged that Shlaes was mistaken. He wrote:

One of the requirements the Schechters violated was a "straight killing" rule, under which buyers had to purchase all the chickens in a coop (or half coop) after chickens unfit for consumption had been removed. Shlaes writes that "to suggest … that Schechter chickens were unfit was … to suggest that their kosher slaughterhouse was not really kosher," because, she suggests, under Jewish law "[c]ustomers … had the right to choose their birds, and this in turn ensured that everyone involved had a chance to determine whether the product was as healthy as possible." (I write "suggests" because Shlaes doesn't lay out the argument she appears to be making, but I can't figure out anything else that she could mean by "not really kosher.")

Shlaes provides no citation to, or discussion of, the applicable Jewish law, and according to one academic expert in the field I consulted, nothing in the law of ritual slaughter appears to require that customers as well as the sellers' employees who qualified as slaughterers for purposes of Jewish law have the right to inspect chickens before sale. Nor, as far as I know after reading the trial transcript, did the Schechters ever claim in court that they had violated the straight-killing requirement because of their view of the requirements of Jewish law. (Once the Schechters allowed customers to pick out scrawny chickens, the Schechters sold those chickens to "the colored trade," as one witness at the trial put it.)

Michigan Law Professor Richard Primus accepted Tushnet's account, and criticized Justice Gorsuch for relying on a "fictionalized account of the facts behind Schechter Poultry." He wrote:

An earlier post on this blog by Mark Tushnet explained that Justice Gorsuch's dissent in Gundy v. United States, which fires a loud shot across the bow of the administrative state, contained something like a fictionalized account of the facts behind Schechter Poultry.  In Gorsuch's presentation, the Schechters were caught between the regulatory demands of the New Deal and their own religious commitments.  "Kosher butchers such as the Schechters," Gorsuch wrote, "had a hard time following these rules.  Yet the government apparently singled out the Schechters as a test case[.]"  In other words, the Schechters were victims of the government's failure to accommodate their religious beliefs.  Worse yet, the government deliberately went after them, the people whose violations arose for religious reasons.  But as Tushnet explains, none of this is true.  Nothing about the Schechters' violations of the New Deal's Codes of Fair Competition arose from any need to comply with the rules for kosher butchering.  For the details, I highly recommend Tushnet's post.

Shlaes has responded to Tushnet in an essay on National Review. Here is an excerpt:

The "straight killing" rule did strain adherence to Kashruth, a Jewish dietary regime that blends custom and law, and this seems to be the source of Tushnet's confusion. He appears to be laboring under the mistaken assumption that Jewish culture is governed by something resembling a uniform code. There is no Supreme Court of Judaism, no single book comprising the whole of Judaic law. Some Jewish law is written in the Bible. Some is imparted via later commentaries. And some is not law at all, but largely unwritten custom, which varies considerably from region to region and may be enforced as stringently as law in some Jewish communities. An action that one rabbi allows, another rabbi might stigmatize. The onus is on the congregant to demonstrate his right to stay in the rabbi's community through rigorous observance. For any kosher butcher to slaughter animals in a fashion that the local rabbi rates inconsistent with law or custom is for the butcher to risk his livelihood.

Shlaes's account comports with how I've long understood the rules of Kashruth: both butchers, and customers, have an obligation to ensure that all animals for consumption by Jews are Kosher. Different communities have different ways to follow this rule. The straight-killing rule made it impossible to reject unkosher animals; buyers would have to take whatever chickens were available. I invite Rabbis or anyone else familiar with this area to comment below.

Moreover, Shlaes adds that trial record explored how the straight-killing rule burdens Jewish dietary laws.

That the Orthodox custom of picking a live animal to be slaughtered, Tushnet's emphasis, prevailed in New Deal-era New York is evident in the lower-court testimony from Schechter Poultry. One of the prosecutors asked a witness to affirm that Orthodox Jews insisted on special selection from live poultry. "Absolutely correct," the witness replied. Could not one slightly alter the custom, and let customers' inspection of a bird be conducted postmortem? One could, said the witness, though "they wouldn't eat it anyhow." New York's Orthodox Jews demanded to pick a live chicken themselves, or rely on someone they trusted to do so.

"In other words," the government asked of another witness, the customers "have a right to reject chickens or not to buy certain chickens if they so desire?" "That is right," the witness said. As the witness testified, "the customer went in and handled each bird himself and picked out just what he wanted." The assembly line of "straight killing" forced a bitter choice upon the butcher: Choose to offend a prosecutor who could put him in jail or offend his community and risk being shunned.

I have posted excerpts of the trial record here.

This debate illustrates, with precision, why courts do not determine the doctrines of a faith; instead they can only ascertain if a certain belief is sincerely held. Trying to parse what beliefs are, and are not within a religion should be avoided at all costs.

Tushnet also suggests that the Schechters may not have been sincere in their beliefs, and did sell unkosher animals. He writes:

Nor were they completely honest businesspersons. They clearly did sell chickens infected with respiratory illnesses, which might have included tuberculosis.

There is a prohibition against selling unkosher (that is, unhealthy) animals to fellow Jews. A similar obligation did not exist towards non-Jews.

Justice Gorsuch was right to rely on Shlaes's account. And, given that there are at least four votes to revisit the nondelegation doctrine, I suspect we will be hearing much more about Schechter Poultry in the years to come.

 

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  1. Completely aside from the religious aspect, why the dickens would any law prohibit customers from picking which chicken they wanted? Reading various posts, including the old volokh.com one, brings out all sorts of sordid details (violent unions trying to drive the Jewish butchers out of business, the butchers going bankrupt because they had beaten FDR in court) but nothing comes close to saying why any one would think it was wrong to let customers pick their own chicken, or why chickens had to be sold by the coop or half coop.

    1. “Fair competition.” I have no idea what that has to do with straight-selling, but prominent businessmen did help write the NIRA legislation, so it might have been a standard anti-competition decision. “Fair competition” was also supposed to be related to worker’s rights somehow, so it might also have been an attempt to push butchering into a more manufacturing-like industry, where the workers could end up more like labor voters and be regulated as such. But I didn’t find anything either. It could’ve just been a stupid decision.

      1. Before big chains like Home Depot, you went down to the lumber yard to buy, say, 20 2x4s. They didn’t let you pick them, so you’d get some twisted monstrosities.

        Perhaps this law allows them to unload all chickens on a regular basis, and not get stuck having to discount a twisted monstrosity, due to twisting, half an inch shorter than it should be.

    2. According to the link where there is an excerpt of the trail record, the only way the g-man says one can ensure that only chickens fit for human consumption are sold is to inspect them post-mortem, and it can’t be done while they are alive, but he doesn’t say why. I don’t know enough about chickens to know if this is true. Anyone here know enough about raising poultry to know if it is true?

      As for why it was a big deal, it’s not a new issue because even if the flashpoint is a dumb one (live vs dead chickens) it’s when sincere religious belief becomes an impediment to government power and those who wielded it. What’s the big deal about baking the cake, taking the pictures, or waxing some Canadian guys balls?

      1. the only way the g-man says one can ensure that only chickens fit for human consumption are sold is to inspect them post-mortem, and it can’t be done while they are alive, but he doesn’t say why. I don’t know enough about chickens to know if this is true.

        I don’t either, but presumably it involves examining the chicken’s insides.

        My guess, anyway.

      2. Fit for human consumption on what basis?

        Post-mortem inspection is not going to detect infectious diseases, unless you are talking about a full on necropsy by a qualified DVM, after which, even if the animal was originally healthy, the remains are likely to be unfit for human consumption.

        You could do blood tests for infectious diseases, but I don’t see why pre/post mortem would make a difference.

    3. ” why the dickens would any law prohibit customers from picking which chicken they wanted?”

      If you’re afraid that merchants will not remove sick chickens from their flocks, you commit to them that the act of removing sick chickens won’t be held against them when the non-sick ones are offered for sale.

    4. Mitigating epidemics is a pretty fundamental governmental function; one of the few arenas that most would agree tends to trump individual liberty concerns.

      1. That is a fair point, but was there a problem before this legislation with people getting sick from kosher butchers?

        1. Doesn’t need to be people. Chicken-only epidemics have detrimental effects on humans as well.

          And I’m sure there were no shortage of those.

          1. The stated purpose of the law was to protect humans from birds unfit for consumption. Was there a problem with chicken only epidemics from kosher butchers having detrimental effects on humans before they passed the law? Handwaving, “I’m sure there was no shortage of those” doesn’t advance your argument.

            1. My thesis is about the scope of government power. i.e. why any one would think it was wrong to let customers pick their own chicken, or why chickens had to be sold by the coop or half coop.

              We can talk about the putative purpose aligning with actual purpose elsewhere.

      2. The butcher got in trouble not for refusing to butcher bad chickens, but for letting the customer have a say in which chickens to veto, as it were.

        He got in trouble for having an extra safety step, not for ignoring the government’s safety step.

        1. I don’t think that’s the facts. Hence why he was cited for selling unfit chickens.

          1. I know nothing about the case other than reading the original S.C. decision, but it says they were charged with a number of violations of the said code, from wage and hour to the ‘straight killing’ provisions. See the para that starts “Of the eighteen counts of the indictment”.

            And if you search for the several occurrences of “straight killing”, it seems that it did indeed prohibit letting customers pick their chickens. Which seems extraordinary – when I go to the store to buy oranges, there is a big pile or oranges and I pick the ones I like. Outlawing my doing that seems really odd. Like an early poster here, I’d love to hear any rational justification for that.

            1. I got my background from Googling “schechter Poultry history.”

      3. That wasn’t the case. It was part of the “fair competition” section of the act. The government just argued that they were trying to prevent people from selling diseased chickens. It wouldn’t prevent epidemics, since they were still transported to the butcher before slaughter and possible inspection. Of course, it’s easier to tell if a chicken is sick before butchering rather than after, so I have my doubts that it’s the real reason.

      4. Too facile, as always, Sarcastro. Gov’t regulation may be warranted in public health cases like vaccinations (anti-vaxxers) or clean drinking water (think Flint, MI) and such-like. But chickens sold in the market place? Not so much. A butcher selling rotten chickens won’t last long, says the marketplace. Most likely, such regulations are nothing but responses to rent seeking from powerful constituents, and only serve to demonstrate the gov’t’s inherent corruption. In fact, most economists would agree to that, what?

        1. Despite your ipse dixit, I’ll need more than ‘more likely…’ before I’ll believe that the passing on of diseases either among chickens or to humans isn’t a caveat emptor thing.

          Rent seeking is a problem, but that’s about as applied, not about the total extent of powers.

  2. “And, given that there are at least four votes to revisit the nondelegation doctrine, I suspect we will be hearing much more about Schechter Poultry in the years to come.”

    I suspect that will depend on whether the liberal-libertarian response to the Republicans’ shameful dalliance with Pres. Trump’s boorishness and bigotry includes enlargement of the Supreme Court.

    One-vote majority in the House, one-vote majority in the Senate, lack of a presidential veto.

    Carry on, clingers.

    1. Rev said – “One-vote majority in the House, one-vote majority in the Senate, lack of a presidential veto.”

      Usually engaging you is a waste of time but let me try to work through your dialogue tree here. Assuming your demography is destiny aspirational fiction becomes reality, and liberals have all 3 branches like 2008 and go whole hog lefty policy without the filibuster, why assume that it will be that way in perpetuity?

      All it takes is, in a two party system, some external shock for people who marginally vote Dem to vote GOP (which is why all three branches went Dem in 2008) Once that shock happens (there will be another crisis eventually) what makes you think that a GOP won’t go tit for tat with all 3 branches and change things back again?

      1. “Usually engaging you is a waste of time”

        Not true, there is no “usually” involved.

        But a one vote majority is not enough to kill the filibuster [though it should be killed imho]. There are multiple “institutionalists” in the Senate that won’t vote to totally kill it.

        1. I bet you one imaginary dollar he doesn’t even respond.

      2. “All it takes is, in a two party system, some external shock for people who marginally vote Dem…”

        The demographic argument is that the number of people who vote Republican or “marginally vote Dem” is shrinking, and being replaced by people who vote Democrat and are non-responsive to external shocks.

        I think he’s probably wrong. The demographic shift is real and observable. But I wouldn’t be as confident as him that it will result in some national mandate about policy. The new demographics will result in new political rifts, just like they always have, everywhere, in history.

    2. I’ll take Trump’s boorishness and bigotry over the boorishness and bigotry of Pelosi, Schumer, the Silly Squad, Sanders, Warren, Harris, Booker, the rest of the Democrat Presidential Clown Car, Cummings, the Rev Al, Antifa, Social Justice warriors, etc. etc. any day of the week, and twice on Sundays. But I’m afraid they and their sticky-fingered clingers will carry on as they always have, hypocritical moralists that they are. May God save us from these sinners, don’t you agree, Rev.?

      1. So you’re willing to embrace a bigot so long as he’s not a Dem, because Dems are definitionally worse than anything a Rep can be.

        Telling.

  3. I think the issues here were not so much religious as economic.

    Jewish law requires inspecting slaughtered animals and throws out a substantial proportion for defects, many not readily visible in the live animal.

    When the consumer picks a live animal, the consumer assumes all risks of the animal’s later being thrown out as unkosher. The purpose of selecting the animal is to mitigate the risks of ending up paying for something unusable. Perhaps the heuristics and intuitions housewives developed worked. Perhaps they were no better than the desire people today have to pick their own lottery numbers. But a desire for control of one’s destiny in risky situations, whether one’s methods work or not, is a very understandable human desire.

    The fact that the issue here isn’t strictly religious is evidenced by the fact that the entire system here was outlawed by a later law, requiring USDA inspections. After this law was passed, kosher slaughterers had rabbinic inspectors do the kosher inspections on the slaughtered animals, at the same time as the government ones, and the sale of live food animals for slaughter on the premises became essentially illegal and stopped. And nobody complained that the new system violated Jewish law.

    The issue instead is one of risk assumption, mitigation, a d cost. The law and its inspectors didn’t strictly outlaw kosher slaughter. But by requiring the customer, especially poor ones for whom a chicken was a luxury (and there was a Depression going on) to assume all risk while rendering them helpless to take any action to mitigate their risks, it tended to harass them, increase their costs, and basically annoy the heck out of them.

  4. The Amazon page for Shlaes book includes the following from two editorial reviews:

    “This breezy narrative comes from the pen of a veteran journalist and economics reporter.” – Publishers Weekly

    “Its duration and depth made the Depression “Great,” and Shlaes, a prominent conservative economics journalist, considers why a decade of government intervention ameliorated but never tamed it.” – Booklist

    It’s not so much the argument she is making the strikes me as odd (I don’t know enough about the Schechter case) but that Gorsuch cited as authority a book written by a journalist and published by HarperCollins. Maybe his law clerk thought Barnes and Noble was a good source to do legal research.

    1. Much better, I suppose, to cite to an article in the University of Kentucky Law Review read by exactly no one, other than the author and editors.

      1. The standards of proof are different between these two areas.

        Reminds me of when Prof. Bernstein fulminated for like a month about a popular book that wasn’t up to legal standards of citation and argument.
        The book did appear to be shoddy, but the standard being argued for was hilariously mismatched.

        1. If the book you’re mentioning is the one where the historian tried to peg Buchanan (the economist, not the politician) as a segregationist, then the issue wasn’t that the documents wasn’t up to peer review standards, it was, but that the author made conclusions that were quite unsupported by the evidence she purported to use to show said conclusion.

          1. If that had been the thesis, it might have gone better.

            The angle Prof. Bernstein took was that the book wouldn’t hold up as a law review article.

            1. No, that was his point. Law review editors often know little about the topic and can’t challenge their articles on substance — but they can and do obsessively check cites to make sure that the sources say exactly what the author claims they say. If anyone had done that, they’d have caught lots of errors.

          2. Like a lot of the evidence was circumstantial, or that a potential alternate explanation was not sufficiently explored.

            I don’t know the details how historical scholarship works, but as a prof of mine said it’s necessarily as much the study of narratives as it is facts.

            In other words, not amenable to the standards Prof. Bernstein put forth.

            1. I’m not going to re-litigate Bernstein (an others) fisking, suffice to say it was sufficient to tank the book’s sales, and the marketplace of ideas, as it were spoke loudly enough on the issue.

              That professorial anecdote is fairly meaningless. Narratives are like normative claims, and those, unfortunately, don’t have standards of evidence. They are just used to conceptualize facts into a semblance or order, as they would otherwise seem without meaning. We are a narrative species that makes sense of the world by stories. If you show people a series of pictures with two colored squares that move randomly around a page, for example, people will say that one square is chasing the other, when the whole thing was without aim from the start.

              1. Invoking the marketplace of ideas as proof of truth when it goes your way is kinda tendentious.

                How do you get historical facts? Unless you’re in anthropology-land, it’s from roughly contemporaneous records. And those always come with narratives attached.
                That’s my point – you can’t deal with standards of evidence in such a regime. At best, you can iterate via didactic. Though even then modern narratives will sometimes take over and that iteration will stop (though the didactic won’t, it’ll just be all heat no light)

                1. Given that there is no apriori way to judge truth, using a collective judgement (the marketplace of ideas) is as valid (and perhaps more so in our democratic society) of judging the worth of something as asking a nutcase in a streetcorner wearing a clown suit.

                  You get historical facts like scientific facts, by examining evidence gleaned through your senses. Most of them are worthless or of dubious value. Does it matter that Caesar had a combover haircut as reported by his contemporaries?

                  That said, I am not be obtuse, I’m just missing your point.

                  1. Glad you concur that consensus means global warming is real, and that the Bell Curve is BS.

                    No, history is not science. You can’t to experiments, you can’t do observations.
                    The vast majority of your evidence is filtered through human narrative.

                    1. You’re just kinda repeating back to me what I said, and making it out like we disagree somehow.

                      There is no consensus on global warming, at least to the level of any anthropocentric cause of it, some 1/2 of a degree according to the UN. And as for the Bell Curve, there is consensus…. to the individual level of the data and methods in it based on in isolation…the “consensus” against the Bell Curve is when (to bring it full circle,) when that data is put into a particular racial narrative. *ahem*

                      Your point is taken, but scientific consensus is a different issue that you’re aliding into, on accident or on purpose, than the “marketplace of ideas.” That scientific progress (can, sometimes) happen one funeral at a time discounts the usual method of deciding what we collectively give preference too.

                      Free will as expressed through individual choice means (for example) one album hits #1 while another doesn’t.

                2. If you’re still talking about MacLean, the problem was that she selectively quoted evidence only in ways that favored her story, while ignoring easily found evidence (her own campus has everything of his and a facility dedicated to him) that couldn’t support her. She declined to speak to experts on the subject, which is a central part of historical investigation, especially for the recently departed.

                  The ensuing animosity came when she flipped her shit and claimed that everybody who criticized her was paid to do so. I don’t blame people for being upset about that. It’s a disgusting and anti-intellectual dismissal for an academic historian to use.

              2. Also note that I said the book appeared to be shoddy, I’m not relitigating the book’s merits, only Bernsteins’ standard of review. As a contrast to this popular book being cited as legally probative.

                1. Shlaes seems to have made correct and valid points about Jewish law and customs, as they pertained to this interesting case — points that had not been made elsewhere. So why should that not be a valid citation in a court case? If the same points had been made in a law journal, on the same basis as Shlaes used, they would have been valid, you seem to say. Well, they have been validated and found true by current peers in the general public, so why should it matter that the book was a popular book? At least, in contrast to Nancy MacLean, she was correct, and didn’t make things up. That ought to count for something, eh? Even in your biased views, right?

          3. @mad_kalak

            Not exactly. The description you offer about unsupported conclusions is accurate, but there were also very substantial criticisms that it wasn’t up to peer review standards, or really even undergraduate paper standards. There were erroneous citations, laughably incorrect interpretations of quotes, lack of due diligence to reach out to relevant subject matter experts, the invention by the author of others’ internal monologue, etc. I don’t think I read Bernstein’s account. I’m thinking primarily of an account by a political economist with experience on the topic and two (I think) historians with left-of-center views.

            1. BLPoG, I think you have an inflated sense of the worth of peer review. It’s better than nothing I suppose, and it depends on the culture of the academic specialty. I do see your point, however. Not to depress you, but take a look at the twitter New Real Peer Review account.

              1. Since she (NRPR) deals with gender studies and similar fields, it doesn’t have much to do with history. History, though a liberal field, still does pretty well with peer review.

  5. Poultrygeist – the terrifying story of the ghost of a chicken with its head cut off.

    1. The chicken that lived 18 months with no head: https://www.bbc.com/news/magazine-34198390

  6. Are you saying that the Schechters ran a-fowl of the law?

    1. Have you been waiting since law school to make that pun? Mine is “Law and Ordure” for environmental law.

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