California's Proposition 12 effectively bans gestation crates by requiring sows to receive at least 24 square feet of space. Gestation crates have been illegal in California for almost a decade, but Prop 12 applies to sales (in California) of (whole, uncooked) pork produced elsewhere, not just in California – and it is this extra-state application of the California rule that lies at the crux of the Supreme Court case, National Pork Producers Council v. Ross (pdf).
The case was at the Supremes to reconsider the lower courts’ decision to grant a motion by California (Ross) to dismiss the case. Had the Court ruled against California, presumably the case would have been remanded back to lower courts to hold a trial looking at the merits of the Producers Council's claim that Prop 12 violates the US Constitution. But in what was certainly a surprise to many Court watchers, the Supremes sided with California, and hence the previous dismissal of the case is upheld.
It was a very close call! Five justices (Gorsuch, Thomas, Kagan, Sotomayor, and Barrett) voted to uphold the dismissal – but no more than four agreed as to a reason for their vote. Gorsuch, Thomas, Sotomayor, and Kagan all agree that the petitioners had failed to allege substantial harm to interstate commerce, and hence that the dismissal was proper. Three justices, including once again Gorsuch and Thomas, but this time accompanied by Barrett, believe that the applicable legal test, known as Pike balancing thanks to a previous case, cannot be applied to Prop 12, as the costs and benefits that it implicates are incommensurable; that is, the dismissal is appropriate because the balancing test is beyond the competency of the courts.
Meanwhile, four justices (Roberts, Kavanaugh, Alito, and Jackson) favored sending the case back to the lower court, arguing that the district court had erred in finding that the pork producers had not managed to allege a significant burden on interstate commerce.
The Supremes were unanimous on one point: the far-reaching claim of the Pork Board – that there is an "almost
per se" rule that state legislation involving external costs is a violation of the
Dormant Commerce Clause – is incorrect; see footnote 4, p. 27, in the opinion of the Court.
The case evoked five opinions in toto: (1) Gorsuch writing for the Court (for the most part); (2) Sotomayor (joined by Kagan) (substantial harm not shown); (3) Barrett (incommensurable costs and benefits); (4) Roberts (joined by Alito, Kavanaugh, and Jackson) (Pike balancing can and should, according to our previous jurisprudence, be undertaken); and (5) Kavanaugh. Justice Kavanaugh's partial dissent provides a roadmap for overturning Prop 12-type regulations in the future. Kavanaugh notes that six justices uphold the Pike balancing test as good law. So future litigants, do a better job (or convince the Court to believe you did a better job) at alleging substantial costs, but also consider using other Constitutional doctrines, not the Dormant Commerce Clause, to bring your challenges to unfriendly (to you) but non-discriminatory state laws. (Thomas and Gorsuch are no fans of the Dormant Commerce Clause, which has no explicit textual basis in the Constitution.) Try the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause instead, Kavanaugh suggests.
I'm pleased with the result, though not pleased with the Kavanaugh opinion and with Justice Jackson's choice to not join the majority. I recognize that the two reasons seized upon for upholding the dismissal, incommensurability and a failure to allege significant harms, are rather weak reeds. Courts balance incommensurables all the time, it is a major element of their job. The failure-to-allege-significant-harms view is more defensible, in my opinion, but one that might be overcome with better lawyering, as Justice Kavanaugh suggests. Down the road, I expect that the Court will have to decide whether better conditions for animals are worth the costs that are imposed on out-of-state producers (though only if they choose to continue to sell in the state with the higher welfare standards), and the opinions in National Pork Producers Council v. Ross lead me to think that there is a pretty good chance that the animals will not win. I find the Roberts and Kavanaugh opinions to be pretty devoid of empathy for the pigs! On the other hand, Justice Gorsuch did display a soft spot for animal welfare, or at least that is how I read pages 2 through 4.
My favorite phrase appears on page 21 of the opinion, when Justice Gorsuch points out that Congress has the power to to adopt rules for interstate commerce, so perhaps that is the right avenue for the Pork Producers to pursue: "it is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshaling a majority of elected representatives across the street." Admittedly, I fear that in the upcoming Farm Bill, Big Animal Ag will make headway convincing Congress that we need to allow worse treatment for our animal cousins.
Related references from October 2022:
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