On Tuesday, the Supreme Court heard a case with implications for abortion access, transgender health care, clean energy, and much, much more. But on the surface, the case itself is about none of these explosive topics. Ostensibly, National Pork Producers Council v. Ross is merely about pigs. In the United States, most pigs raised for meat are treated cruelly—confined in cages so small that they cannot stand up, sit down, or turn around. California outlawed the sale of pork from pigs raised in this “cruel” manner in 2018. Now the Supreme Court will decide whether California’s law violates the Constitution, with possible far-reaching consequences.
You might expect that a 6–3 conservative supermajority ostensibly devoted to limited federal power would give blue states leeway to experiment with economic policy. But National Pork involves a constitutional provision that divides both conservatives and liberals along unusual lines: the dormant commerce clause. This doctrine emerged from the theory that the Constitution intended to create a single national market and thus restricted states’ authority to regulate commerce beyond their borders. So, for instance, Michigan can’t discriminate against out-of-state wineries just because it wants Michigan residents to drink (mediocre) wine produced in-state.
Textualists and originalists tend to dislike the dormant commerce clause since it doesn’t appear in the Constitution; the Supreme Court has instead inferred the doctrine from the actual commerce clause, which gives Congress (not states) the power to regulate interstate commerce. Because it’s a judge-made gloss on the Constitution, justices like Clarence Thomas and Neil Gorsuch reject its validity. Yet other conservative justices, like Samuel Alito and Chief Justice John Roberts, champion the dormant commerce clause because it gives courts a tool for deregulation—a key aim of the right-wing legal movement. The left flank of the court is also conflicted: Liberals have historically supported the doctrine’s goal of a nationwide market regulated only by Congress, but disliked its potential to nullify forward-thinking blue state regulations.
Today, there’s another reason why some progressives are looking more favorably upon the dormant commerce clause: At a time when the Supreme Court is rapidly revoking constitutional rights like abortion, the doctrine creates a barrier to red states that seek to extend their laws beyond their own borders. The dormant commerce clause is one pillar of the right to travel. This liberty is increasingly relevant after the fall of Roe v. Wade, as red states consider prohibiting their own residents from traveling elsewhere to terminate a pregnancy. While voting to overturn Roe, Justice Brett Kavanaugh expressed his belief that such laws would violate “the constitutional right to interstate travel.” That right may become vital for transgender Americans, too, as red states mull laws that bar residents from traveling out of state to obtain gender-affirming health care for themselves or their children.
While a strong dormant commerce clause can protect fundamental rights like abortion, however, it also threatens another liberal project: state-level efforts to promote clean energy. California, for example, sets fuel standards that are higher than the federal government’s; as a result, manufacturers in other states must make more efficient cars if they want access to the California market. Colorado requires its utility companies to provide some energy from renewable sources, which disadvantages fossil fuel producers in other states that share Colorado’s grid. A turbocharged dormant commerce clause would jeopardize such progressive attempts to decarbonize blue states.
Caught in the middle of these two poles are the pigs of the United States. California imports most of its pork from pig-producing states like Iowa and North Carolina. That means the effects of its law—a voter-approved measure called Proposition 12—falls on pork producers beyond California’s borders. Is that kosher?
Several conservative justices didn’t seem to think so during Tuesday’s oral arguments, and used hypotheticals implying that Proposition 12 is just the start of a campaign to impose California’s woke values across the country. Justice Amy Coney Barrett asked if California could ban pork from companies “that don’t require all their employees to be vaccinated or from corporations that don’t fund gender-affirming surgery.” Kavanaugh wondered if it could ban fruit from companies that don’t pay the minimum wage. Kavanaugh and Alito both asked if a state could ban the sale of goods created by nonunion employers. The justices also implied that other states could decide “turnaround is fair play” and try to penalize California by banning goods handled by noncitizens or unionized employees.
Alito, probably the court’s fiercest defender of the dormant commerce clause, also suggested that California had enacted Proposition 12 because it wanted to “bully” smaller states. “Is California unconcerned about all this because it is such a giant, you can wield this power?” he snapped at California Solicitor General Michael Mongan. “Wyoming couldn’t do it, most other states couldn’t do it, but you can do it? You can bully the other states, and so you’re not really that concerned about retaliation? Is that part of your position?” (Mongan’s answer, predictably, was no.)
The liberal justices, meanwhile, spent the bulk of their time beating up on Timothy Bishop, who did a poor job in representing the pork companies trying to take down Proposition 12. They were joined by Thomas and Gorsuch, two avowed foes of the dormant commerce clause, creating the curious spectacle of two ultraconservative justices defending a deep-blue state’s animal cruelty law. Gorsuch scolded Bishop for trying to revive the Lochner era, when SCOTUS struck down many health and safety regulations. “You are selling us … a freewheeling balancing test à la Lochner to protect an economic liberty rather than defer to state regulation on health and safety,” the justice asserted. “Isn’t that just a form of enshrining non-textual economic liberties into the Constitution, a project this court disavowed a long time ago?”
Unsurprisingly, the liberal justices sounded torn. Initially, they thrashed Bishop, as well as Edwin Kneedler, who argued on behalf of the Department of Justice. (The DOJ sided with the pork producers, upsetting animal rights advocates by maintaining the Trump administration’s position.) Both lawyers framed Proposition 12 as a moral objection to cruelly produced pork with no scientific basis. But, as Justice Sonia Sotomayor told Bishop, extreme confinement of pigs can lead to contaminated pork, which sickens consumers. Aren’t these “genuine scientific reasons” for the law sufficient to justify it? Justice Elena Kagan asked Kneedler if, before the Civil War, a state could ban the sale of goods “produced by slavery.” Kneedler said that no, a state could not prohibit slave-made goods. (That answer signals a serious problem with his theory.)
But by the end of arguments, the liberal justices were pivoting back, and understandably so. A big swing on the dormant commerce clause in either direction could damage progressive jurisprudence in so many other areas. Upholding California’s law would give hope to red states that want to cut off their residents’ access to health care elsewhere. Striking it down could imperil blue state innovations that push the national market toward cleaner energy. And we shouldn’t forget about the pigs—highly intelligent, emotionally sensitive creatures who are tormented by the extreme confinement that Proposition 12 discourages. It would be tragic if the liberal justices helped invalidate the measure solely out of fear that upholding it would empower the conservative bloc to wreak havoc in other cases. The conservative bloc is going to do whatever it wants in every case, no matter how National Pork comes down.
On a reasonable court, there would be five votes to uphold Proposition 12 on the narrow grounds that it is not intended to discriminate against other states, and that pork producers around the country can comply without any substantial burden on interstate commerce. Failing that, the court could send the case back down for a trial to measure the law’s real-world effect on other states. Without Thomas or Gorsuch on board, the remaining conservative justices’ ability to manipulate National Pork to further their ideological goals is limited. That gives the liberal justices the opportunity to broker a compromise that won’t exploit the plight of the pigs to sabotage human rights.