The Supreme Court on Thursday upheld a California law that sought to address cruelty to animals, saying the state could require pork sold there but produced elsewhere to come from breeding pigs housed in spaces that allow them to move around freely.
The decision was badly fractured and featured competing rationales, but the basic vote was 5 to 4. In a controlling opinion, four justices said that the pork producers challenging the law failed to make the case that it imposed a substantial burden on interstate commerce.
Justice Neil M. Gorsuch, here writing for five justices, set out the main issue. The challenged law, he said, prohibited “the in-state sale of certain pork products derived from breeding pigs confined in stalls so small they cannot lie down, stand up or turn around.”
It is true, he went on, that “no state may use its laws to discriminate purposefully against out-of-state economic interests.” But the California law, he wrote, did not offend that principle.
“While the Constitution addresses many weighty issues,” Justice Gorsuch wrote, “the type of pork chops California merchants may sell is not on that list.”
Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett joined most of Justice Gorsuch’s opinion, though they differed sharply on the reasoning.
Kitty Block, the president of the Humane Society of the United States, praised the decision. The ruling “made clear that preventing animal cruelty and protecting public health are core functions of our state governments,” she said in a statement.
Scott Hays, the president of the National Pork Producers Council, expressed disappointment. “Allowing state overreach will increase prices for consumers and drive small farms out of business, leading to more consolidation,” he said in a statement.
The law, Proposition 12, a 2018 ballot measure that was approved by more than 60 percent of the state’s voters, was challenged by two trade groups that said it interfered with interstate commerce and sound business practices.
There was no dispute that the state may regulate the treatment of pigs in its borders. But California produces almost no pork, even as its residents consume 13 percent of the pork produced in other states.
The question for the justices in the case, National Pork Producers Council v. Ross, No. 21-468, was whether the law’s impact on business practices in those other states ran afoul of the Constitution’s commerce clause.
Though the clause addresses congressional power, the Supreme Court has said that it also imposes some limits on state laws that affect conduct beyond the state’s borders. Those limits are said to arise from “the dormant commerce clause.”
Addressing arguments under that clause, Justice Gorsuch wrote that the pork producers “begin in a tough spot.”
“They do not allege that California’s law seeks to advantage in-state firms or disadvantage out-of-state rivals,” he wrote. “In fact, petitioners disavow any discrimination-based claim, conceding that Proposition 12 imposes the same burdens on in-state pork producers that it imposes on out-of-state ones.”
According to a tally in a partial dissent filed by Justice Brett M. Kavanaugh, Justices Thomas, Sotomayor and Kagan joined the controlling part of Justice Gorsuch’s opinion, while an overlapping group of six justices endorsed a balancing test to assess claims under the dormant commerce clause. Three members of the court, Justice Kavanaugh wrote, would have done away with that test.
In a part of his opinion on that point, Justice Gorsuch, here joined by Justices Thomas and Barrett, said that balancing the interests in play was “a task no court is equipped to undertake.”
“On the one hand, some out-of-state producers who choose to comply with Proposition 12 may incur new costs,” Justice Gorsuch wrote. “On the other hand, the law serves moral and health interests of some (disputable) magnitude for in-state residents. Some might reasonably find one set of concerns more compelling. Others might fairly disagree. How should we settle that dispute? The competing goods are incommensurable.”
“Your guess is as good as ours,” he wrote. “More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives.”
A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, rejected the argument that the law’s out-of-state effects made it invalid. “State laws that regulate only conduct in the state, including the sale of products in the state, do not have impermissible extraterritorial effects,” Judge Sandra S. Ikuta wrote for the panel.
The law forbids the sale of most pork in California unless the pig it comes from was born to a sow that was housed with 24 square feet of space. But most sows around the nation are kept in much smaller enclosures.
“These pens,” the groups challenging the California law wrote in a Supreme Court brief, “provide around 14 square feet of space and — for hygiene, safety, and animal-welfare and husbandry reasons — do not allow the sow to turn around.”
The size of California’s market, the groups added, makes it impossible to ignore the state’s requirements. “Californians account for 13 percent of the nation’s pork consumption, but raise hardly any pigs,” their brief said. “The massive costs of complying with Proposition 12 fall almost exclusively on out-of-state farmers.”
Lawyers for California and the Humane Society of the United States said the challenged law was a modest and measured response to a health hazard and a moral disgrace.
In a partial dissent, Chief Justice John G. Roberts Jr., joined by Justices Kavanaugh, Samuel A. Alito Jr. and Ketanji Brown Jackson, said the “sweeping extraterritorial effects” of the law warranted sending the case back to the appeals court to consider whether the burdens it imposed outweighed its benefits.