The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.