May 31, 2023

On 11 May, the U.S. Supreme Court decided National Pork Producers’ Council v. Ross, in which the justices ruled by a 5-4 margin that California’s Proposition 12, approved by voters in 2018, is constitutional.  Proposition 12 banned the sale, in California, of pork derived from pigs, or the offspring of pigs, that were confined on less than 24 square feet of floor space per breeding pig, or “in a manner that prevents the animal from lying down, standing up, fully extending [its] limbs, or turning around freely.”

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The case was an important decision for states’ rights, and it split the Court in an unusual way: Justices Thomas, Gorsuch, Sotomayor, Kagan, and Barrett sided with California, while Justices Roberts, Alito, Kavanaugh, and Jackson voted against allowing the new law to go into force.

It is worth noting that of the five justices who made America’s liberals so angry by deciding Dobbs v. Jackson last summer, three of them — Thomas, Gorsuch, and Barrett — sided with deep-blue California in this particular dispute, while the four left-leaning justices were split half and half.  (Bizarrely, the Biden administration deferred to commercial interests by asking the Court not to rule in favor of California — thus angering many Democrats who support animal rights.)

All of this says something important about the fairmindedness and integrity of the Court’s new conservative majority.  Last summer, you probably heard over and over again from the left-wing press that the Court was making itself too powerful, or tearing down American democracy, or other such black-is-white drivel.  This case proves (in case more proof was still needed) that this isn’t true: most of the Court’s conservatives are willing to let laws stand — even laws that are unpopular on their own side of the aisle — when there isn’t a clear reason, based on the text of the Constitution, to strike them down.

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In other words, if the National Pork Producers’ Council disagrees with the reasoning behind California voters’ decision to ban pork from pigs confined on less than 24 square feet of floor space, it should deal with the issue by lobbying California to change its laws, or by lobbying Congress to override them — not by asking the federal courts to create a new constitutional right.  While pig farmers who sell their meat to California will indeed be burdened by the law, that alone isn’t reason enough to strike it down.  As the conservative Justice Barrett put it in her concurrence:

California’s interest in eliminating allegedly inhumane products from its markets cannot be weighed on a scale opposite dollars and cents — at least not without second-guessing the moral judgments of California voters or making the kind of policy decisions reserved for politicians.

Basically, under the new regime that began last summer, citizens in red states are allowed to enact laws that reflect their conservative sense of morality, and citizens in blue states are allowed to enact laws that reflect their liberal sense of morality.  There are still exceptions for genuine constitutional rights like freedom of speech, freedom of religion, freedom from racial discrimination (such as that practiced by Harvard), and the right to keep and bear arms.  But otherwise, voters and elected legislatures will be given the benefit of the doubt.

What that means is that we are getting actual neutrality now — not just a mirror image of the last fifty years of American jurisprudence, where a law was constitutional if and only if it aligned with the moral standards of a particular wing of a particular party.

Now, it’s worth describing in some detail what legal doctrine the Pork Producers’ Council used to challenge California’s law, and why so many justices from across the ideological spectrum rejected it.

The case was brought under the Dormant Commerce Clause.  This is a constitutional doctrine (not an actual clause of the Constitution) that states that, because Congress is given power, in Article I, “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” the states can’t regulate interstate commerce.  (Another related clause prohibits states from laying “Imposts or Duties on Imports or Exports” without the consent of Congress.)