This year’s Supreme Court Term is now in the home stretch.  All oral arguments have been completed, and all that is left is for the Supreme Court to issue the decisions in the case.  (As of May 12, there are still 40 cases left to be decided over the next seven weeks.)  On Thursday, the Supreme Court issues an opinion in one of the sleeper cases of the term — National Pork Producers Council vs. Ross.  

The issue in the case is the validity of California’s laws requiring pork products sold in that state to meet certain criteria related to the proper treatment of the hogs prior to their slaughter.  As one can imagine, pork producers in other states do not like having to change how they raise their livestock in order to sell pork in California.  They would rather be able to find the most lenient state possible and raise their hogs in that state.  So they filed a challenge to the regulation based on the so-called “Dormant” Commerce Clause.  The Commerce Clauses gives Congress the authority to pass legislation that regulates interstate commerce.  Over the years, the Supreme Court has inferred from that grant of authority that their is an implied (or in legal speak, dormant) aspect of that grant of power that limits the ability of states to regulate interstate commerce.

In deciding this challenge, we got a rather unique alignment of Supreme Court justices.  And one of the reasons for that alignment is that Supreme Court decisions are not just about the current case.  They are about the next case.  The partisan politics of the Supreme Court (and it is impossible to deny that whatever used to be true, Supreme Court justices have become political actors placed on the court to serve specific political agendas) may dictate the preferred “rule of law” that the Supreme Court justices want to see in place including the blatant tossing out with little or no justification of long-established rules that contradict a justices preferred rule, but justices still like to apply those rules consistently from case to case.  Thus, underlying the decision in this case is what type of analysis should the Supreme Corut apply to the next case in which a red state requires manufacturers to not adopt “liberal policies” to their production processes.

The easy part of the case was the core rule that has been developed about the Dormant Commerce Clause.  The core rule is that a state should not, with limited exceptions, be able to expressly discriminate against products produced in another state.  In other words, a state can’t pass a law that says that the only pork products sold in its state are those in which the hog was raised and slaughtered in that state and the meat processed in that state.  Similarly, a state can’t pass a tax that only applies to pork prodcuts from another state.  All nine justices agreed that the California law did not expressly discriminate against pork products from another state.  Simply put, those raising and slaughtering hogs in Iowa can change their practices to meet the California standards so that they can sell the ultimate pork products in California.

The harder part for the Supreme Court is the “extraterritoriality” prong of the Dormant Commerce Clause.  In simple language, California can pass laws that govern the activities of individuals in Los Angeles or Mercedo.  But California can’t pass laws that govern the activities of individuals in Detroit or Pittsburgh.  But when a legislature or city counsel passes laws that govern what can be sold in that jurisdiction — while it does not directly require a manufacturer to obey the law — it is using its economic power to create an incentive for out-of-state manufacturers to “voluntarily” comply with the new law.   Of course, the bigger the state or city, the more likely it is that a manufacturer will voluntarily comply.  An ordinance from Los Angeles is more likely to get the attention of Acme Widget company than an ordinance from Addison, Alabama.  A law from California or Texas is more likely to matter to Petroleum-R-Us company than a law from Wyoming or Vermont.  And so the issue is how to determine when a state has gone so far in its regulations that it is improperly regulating the national (or even international) market for a good.  On the other hand, you don’t want to bar what is typically seen as a valid local law such as letting California and Texas set the educational standards for their schools even though such laws have the secondary effect of influencing which textbooks are produced nationally.

In the past, the Supreme Court has used a balancing test to view these extraterritoriality claims.  And here is where the breakdown gets interesting and splintered.  The majority (Justices Gorscuch, Thomas, Sotomayor, Kagan, and Barrett) view this balancing test as a very narrow test that is difficult for an opponent of nondiscriminatory legislation to meet.  In particular, Justices Gorsuch, Thomas, and Barrett find that is almost impossible to do when the concerns in the law are “moral” concerns about good business practices rather than economic concerns and that considering the different views of different states about how to best serve those moral concerns is an impossible erran for courts.  Even if such balancing is possible (as Justices Sotomayor and Kagan believe), Justices Gorsuch, Thomas, Sotomayor, and Kagan believe that the pork producers have failed to make an adequate showing that they are significantly burdened by the California regulations.  By contrast, the dissenters (Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson) agree with Justices Sotomayor and Kagan that it is possible for courts to do a balancing test even when non-economic concerns are part of the analysis and agree with Justice Barrett that the pork producers have alleged a sufficient burden on interstate commerce.

In short, this is a case that muddies the water substantially on this issue.  It is a weird case in which three groups of Justice (Gorsuch and Thomas, Sotomayor and Kagan, and Barrett) come to the ultimate conclusion that, for different reasons, the Pork Producers claims fail.  But on each of those reasons, a majority of the court concludes that the claims are sufficient to require a lower court to reconsider the ruling denying those claims.  In other words, the dissent probably states the legal standard that will govern future cases.

In the short term, this decision is good for animal rights advocates as California’s rules which require humane treatment of livestock for products sold in California will remain in effect.  In the long term, we will need to see if the next challenger to such rules does a better job of pleading the burden on interstate commerce.  And this case serves as a reminder that, sometimes, we see strange bedfellows on the court as the interests involved in the current case clash with the interests that will be involved in the “next” case raising a similar issue.