They’re at it again! (See here, here, here, here, . . . )
In the Nat’l Pork Producers Council v. Ross case, decided last Thursday, the Court has again fallen into what Steve Salop and I called, many years ago, the “Tidewater voting paradox.” Here’s the lineup:
GORSUCH, J., announced the judgment of the Court, and delivered the
opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which
THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined, an opinion with
respect to Parts IV–B and IV–D, in which THOMAS and BARRETT, JJ.,
joined, and an opinion with respect to Part IV–C, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part, in which KAGAN, J., joined. BARRETT, J., filed an opinion
concurring in part. ROBERTS, C. J., filed an opinion concurring in part
and dissenting in part, in which ALITO, KAVANAUGH, and JACKSON, JJ.,
joined. KAVANAUGH, J., filed an opinion concurring in part and dissenting in part.
Obviously, it’s a mess, but it’s a good deal more troubling than the ordinary mess. Here’s what’s going on.
The case involved a dormant Commerce Clause (DCC) challenge by the Nat’l Pork Producers’ Council (“NPPC”) to a CA law (Proposition 12) requiring that all pork sold in CA come from pigs that were not “cruelly treated”; cruel treatment is defined in the statute, inter alia, to mean confinement in less than 24 square feet of space. The Ninth Circuit dismissed the NPPC claim for failure to state a valid claim under the DCC, and, by a vote of 5-4, the Supreme Court affirmed the dismissal.
The NPPC advanced a number of theories supporting their claim. While the “core” of the DCC is a prohibition on state laws that are “discriminatory” or “protectionist,” designed to give an economic advantage to in-state businesses at the expense of out-of-state businesses, the NPPC conceded that Proposition 12 was not such a law; it treats in-state and out-of-state pork producers in precisely the same manner.
The challengers relied instead on a different thread of DCC caselaw, the so-called Pike balancing test:
In Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the Court distilled a general principle from its prior cases: “Where [a] statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”
Three Justices—Gorsuch, Thomas, and Barrett—reject NPPC’s argument, because they believe that Pike has been misinterpreted, and that it does not “authorize judges to strike down duly enacted state laws regulating the in-state sale of ordinary consumer goods (like pork) based on nothing more than their own assessment of the relevant law’s ‘costs’ and ‘benefits’.” That is especially problematical where, as here, costs and benefits in this case are entirely incommensurate, and cannot be “weighed” or “balanced”:
Our case illustrates the problem. On the “cost” side of the ledger, petitioners allege they will face increased production expenses because of Proposition 12. On the “benefits” side, petitioners acknowledge that Californians voted for Proposition 12 to vindicate a variety of interests, many non-economic. How is a court supposed to compare or weigh economic costs (to some) against noneconomic benefits (to others)? No neutral legal rule guides the way. The competing goods before us are insusceptible to resolution by reference to any juridical principle.
The task, Justice Gorsuch (quoting Justice Scalia) wrote, “is like being asked to decide whether a particular line is longer than a particular rock is heavy.”
The Pike analysis, in this view, is not separate from the prohibition on discriminatory laws—it is actually a tool to detect discrimination.
Pike’s “general rule” reflects a commonsense principle: Where there’s smoke, there’s fire. Ibid. Under our dormant Commerce Clause jurisprudence, one State may not discriminate against another’s producers or consumers. A law whose burdens fall incommensurately and inexplicably on out-of-state interests may be doing just that.
Because there is no plausible argument to suggest that Proposition 12 is discriminatory, there is no need to apply the Pike test.
Two additional votes to affirm are provided by Justices Kagan and Sotomayor. Their theory of the case is different. In their view, the “courtroom door is open to claims [under Pike] premised on even nondiscriminatory burdens” – i.e., Pike balancing is alive and well—and courts are not “incapable of balancing economic burdens against noneconomic benefit.” But the claim here fails because the harms that the NPPC alleges amount to no more than that CA has “favored one business structure” (farmers who “stringently confine pigs and processors who decline to segregate their products) over another (those who raise and trace Proposition 12-compliant pork),” and the DCC does not protect against that category of harm. The DCC “protects the interstate market from prohibitive or burdensome regulations; it does not protect particular firms or “particular structures or methods of operation.”
Four Justices (Roberts, Alito, Kavanaugh, Jackson) dissented; they would hold that Pike balancing is appropriate in this case, that courts performing that balancing can weigh economic harms against non-economic benefits, and that the harms alleged by the NPPC do “plausibly allege a substantial burden on interstate commerce.”
So far so good. It looks like a straightforward 5-4 decision in CA’s favor.
But then Justice Barrett does something rather curious: having joined Justice Gorsuch’s opinion eschewing Pike balancing in a case where the benefits and harms are “incommensurable,” she then adds: If the burdens and benefits in this case were not incommensurable, and the Court were to perform the Pike balancing, the harms alleged by NPPC would be sufficient to state a claim under the DCC.
The complaint plausibly alleges that Proposition 12’s costs are pervasive, burdensome, and will be felt primarily (but not exclusively) outside California. If the burdens and benefits were capable of judicial balancing, I would permit petitioners to proceed with their Pike claim. [emphasis added]
So where does that leave matters?
Think of it this way: After NPPC v. Ross, does the DCC permit courts to balance in-state benefits against out-of-state harms, even where the benefits and harms are incommensurable (e.g., economic vs. non-economic)? Yes 6-3 (EK, SS, and the four dissenters [JR, SA, BK, and KBJ]] vs. [NG, CT, ACB]).
After NPCC v. Ross, when courts engage in this kind of balancing, are the kinds of economic harms alleged by the plaintiff here sufficient to state a viable DCC claim? Yes 5-4 (ACB and the four dissenters] vs [NG, CT, EK, and SS]).
Uh-oh. If those propositions of law constitute the law of the land—if the DCC permits courts to balance in-state benefits against out-of-state harms, even where the benefits and harms are incommensurable, and if, when courts engage in this kind of balancing, the kinds of economic harms alleged by the plaintiff are sufficient to state a viable DCC claim—the NPPC should win, right? But it didn’t win, because the Court engaged in “outcome-voting,” and 5 Justices think the NPPC claim should be dismissed.
But given this lineup, what happens going forward? Think of it this way: Imagine a hypothetical NY law, modeled precisely on Prop 12, which prohibits the sale in NY of beef from cows that were “cruelly treated.” If the National Beef Producers Council brings a DCC action alleging the same basic facts as the NPPC did here, wouldn’t a court, applying NPPC v. Ross, have to find that the plaintiff has stated a valid DCC claim? But if that’s the case, doesn’t that violates the (very) fundamental principle that like cases should be treated alike? Are future courts bound by the outcome in the Ross case, or by its “holdings”?