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. Continue Reading...