Supreme Court split on California pork ruling leaves more questions than answers
WASHINGTON (CN) — Division on the Supreme Court was evident last week in a ruling to uphold a California law governing pork sales.
The fractured ruling upheld California’s law but the five justices in the majority agreed only to portions of the opinion. Four of the justices who dissented from the ruling could not even completely agree to do so, writing an opinion concurring in part and dissenting in part.
The lack of consensus on the case appears to be driven by the potential outsized impacts that the ruling will have.
“They were very worried about the goose and the gander problem,” Steve Wells, the chair of Dorsey & Witney’s appellate practice group, said in a phone call.
A lawsuit by pork industry groups brought the case to Washington, challenging a voter-approved measure that sets minimum measurements for the pens that house sows whose offspring become meat sold in California. The theory used to challenge the law was the dormant Commerce Clause, which limits the extent to which states can affect interstate commerce.
“It’s very clear to me that the justices, when they looked at this, they were they were thinking, no matter what we say here, this law will apply to laws enacted by progressive legislatures and it will apply to laws enacted by conservative legislatures,” Wells said. “If we prefer one now, the court could prefer another one later, and that’s not a good thing.”
By keeping the status quo, the court decided to avoid igniting a war between red and blue states that sometimes enact diametrically opposed policies. The author of last Thursday’s majority opinion, Justice Neil Gorsuch, said state laws can harm the Commerce Clause when they aid domestic commerce by putting burdens on out-of-state businesses. Gorsuch said this antidiscrimination principle was key to the court’s jurisprudence in the area.
Whereas the conservative supermajority has been criticized by court watchers for taking an aggressive posture in reshaping jurisprudence, some experts see the ruling on animal humane law as an example of restraint.
“In some ways, to me anyway, it’s encouraging because it seems to me that it’s really not politically driven,” Wells said. “It’s driven by a desire not to be political.”
But other experts say not taking a stronger position on this issue leaves advocates and lower court judges at a disadvantage.
“We’ve got a court of nine individuals who don’t think about being a court as opposed to their own nine private views because they did not try to come to any kind of agreement that would help lower court judges and lawyers and politicians understand what the law is,” David Cohen, a law professor at Drexel University, said in a phone call. “Rather, they brought their own individual views and said, hey, everyone else figure that out, which is not very helpful, but they don’t seem to care.”
In some ways, this argument is already playing out. Less than a week after the justices handed down their ruling, there has been division over how this precedent will impact abortion laws. Some see the ruling as putting few limits on the moral and policy choices states can make on goods within their own borders.
“A majority of the court found that they were OK with a state law having extraterritorial effects, which could give some encouragement to anti-abortion states to pass laws that have effects beyond their borders,” Cohen said.
For example, a state like Texas could pass a law similar to California’s, banning all pork sales within its borders that are produced in states that support abortion access. California could do the same, banning sales from states that are curtailing abortion access.
“What they are going to try to do — and have already tried in some places — is not just ban abortion in their own state, but also try and limit their own residents from getting abortions in other states and make it harder for people in their state to assist people traveling out of state,” Cohen said. “So basically pass laws that have effects in other states because they want to try and stop as much abortion as they possibly can.”
Other legal experts note that the court rejected the pork producers’ expansive view of the dormant Commerce Clause, a signal that the court is not willing to allow these types of laws using this theory.
“All of the justices rejected the really novel and radical argument that the pork producers were pressing under the label of extraterritoriality,” Brian Frazelle, a senior appellate counsel at the Constitutional Accountability Center, said in a phone call. “This was their most aggressive claim and would have really expanded the reach of the dormant Commerce Clause and would have called into question all kinds of state laws.”
Frazelle notes that California’s law was not attempting to regulate or criminalize anything happening outside of its borders.
“I think to the extent that this decision is seen as taking away a potential new argument that litigants could have used to challenge overbroad, perhaps abortion-related legislation, that argument was never going to work in the first place,” Frazelle said.
By reaffirming its prior precedents and rejecting the novel theory embraced by the pork producers, the justices upheld the status quo. In some ways, however, the case before the court was novel — dealing with industry-specific calculations.
“The question is where will you get a majority vote if it raises the same issues with abortion or with guns,” Cohen said. “And I don’t think we’ve got answers on that.”