Supreme Court upholds California's Proposition 12

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 5-4. In a controlling opinion, four justices said that the pork producers challenging the law failed to make the case that the law imposed a substantial burden on interstate commerce.

Justice Neil Gorsuch, here writing for five justices, set out the basic 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,” 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 Gorsuch's opinion, although they differed sharply on the reasoning.

The law, Proposition 12, a 2018 ballot measure that was approved by more than 60% 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% 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 commerce clause.

Although 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, 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 Kavanaugh, Thomas, Sotomayor and Kagan joined the controlling part of 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, Kavanaugh wrote, would have done away with that test.

In a part of his opinion on that point, Gorsuch, here joined by Thomas and Barrett, said that balancing the interests in play was “a task no court is equipped to undertake.”