I am a realist. In the legal context, that means I think judges and justices more or less make up the law as they go along to satisfy their political, social, or ideological preferences. There’s no objective constitutional reason for Chief Justice John Roberts to hate the idea of Black people voting. There’s nothing forcing Sonia Sotomayor to support the rights of women, just like there’s nothing that requires Neil Gorsuch to seek the destruction of the administrative state. These people believe the things they believe and just happen to be experts at searching the law to find ways to confirm their worldviews. Indeed, the justices’ votes are often easy to predict because their ideological priors are always so obviously on display.
Even when the justices vote “against” their assumed political interests, it’s only because they are positioning themselves for bigger ideological fights down the road. Sometimes it’s impossible to understand what the justices are even arguing about without knowing the laws the justices want to make up or destroy in the future.
This real-world lens is necessary to understand the big case argued in front of the Supreme Court this week: National Pork Producers Council v. Ross (that’s Karen Ross, secretary of the California Department of Food and Agriculture). On the surface, National Pork Producers is about, well, pork production. Specifically, it’s about the horrific and inhumane way pregnant pigs are housed to reduce costs and maximize profits. The pork industry uses something called “gestation crates” to house pregnant sows: They are small cages measuring about two by seven feet, making it impossible for the 400–500 pound animals to do so much as turn around. They’re cruel, and researching them to get ready for this case has made me change what I look for on a package of bacon, because my stomach allows me to eat pigs but not torture them.
California voters, in their decency, passed a law, via referendum, that bans the sale of products made from pigs kept in these horrific conditions. The pork producers sued, arguing that the California law effectively regulates the pork industry outside the state (as most pig farms are not in California), and thus violates the Constitution’s Commerce Clause. The Commerce Clause says that only Congress has the power to regulate “interstate commerce.” That power is thought to prohibit states from passing regulations that extend beyond their borders, even in cases where Congress has not yet acted; lawyers call it the “dormant” commerce clause. In this case, the pork producers argued that even though Congress has not yet taken a position on pig torture, California’s law violates the dormant commerce clause by de facto regulating the pig farming industry by mandating how pigs must be farmed if they are to be sold in California.
I could give you lots of good arguments for why the pork producers are wrong. (Try to sell a dog bred in an out-of-state puppy mill to a pet store in California… I’ll wait.) But the arguments about why they are wrong—and about whether California’s law is constitutional—are almost irrelevant, because the Supreme Court isn’t treating this case as if it were just about pork or gestation crates or commerce. For the nine justices, this case is actually about abortion and LGBTQ rights and labor unions and environmental protection. It’s about whether a state can pass a law for what it perceives as purely moral reasons and then ban products made in other states that do not follow suit.
Outlawing animal cruelty on moral grounds makes a lot of sense, until you remember that Republicans exist and that they think treating LGBTQ people and women with dignity and respect is morally questionable. If California can ban pork produced in ways it deems immoral, what’s to stop Texas from banning things it deems “immoral”—like fish provided by black mermaids or fruit picked by undocumented workers? These are not fanciful concerns made up to flummox first-year law students. Weakening the dormant commerce clause, even a little, could well result in MAGA states’ passing facially ridiculous laws in a race to see who can be first to ban products produced by organized labor. The threat is so great that the Biden administration weighed in on behalf of the pork industry, and urged the court to allow the lawsuit against California to go forward.
At oral arguments, all nine justices struggled with the long-term implications of this case, with most of them appearing more concerned with something other than whether pigs should be tortured for pork and profit. Because the justices became untethered from the case in front of them, the arguments gave us a glimpse into what these nine lords want the most.
Justices Clarence Thomas and Neil Gorsuch want the destruction of the dormant commerce clause and the creation of a dystopian hellscape in which each state is free to discriminate in whatever way seems best to it. Their questions suggested that they think the states should have at it, each banning whatever they want, for whatever reason. These two were the most consistent defenders of the California law, but not because somebody snuck an Impossible Burger onto their lunch plates. They made no argument in defense of animals; instead, they made their arguments in defense of “states’ rights”—a Confederate battle cry that almost always results in the mistreatment of people of color, women, and the LGBTQ community.
Meanwhile, alleged attempted rapist Brett Kavanaugh and Amy Coney Barrett seemed to worry about the other side of this coin: whether, if the commerce clause were weakened, liberal states could ban products produced in states that don’t offer strong labor protections or that discriminate against LGBTQ residents or what have you. Barrett asked specifically whether states could ban products from employers that don’t offer gender-affirming surgery. My read was that Kavanaugh and Barrett are unlikely to side with Thomas and Gorsuch, because if California can mandate the humane treatment of pigs to sell in California, it might one day mandate the humane treatment of women by companies that want access to the Californian market—and Kavanaugh and Barrett can’t have that.
The final two conservatives, Roberts and Samuel Alito, also appeared to oppose weakening the commerce clause. But that’s not because they don’t love states’ rights—they do. It’s because they love giant corporations even more. In rejecting California’s argument against the mistreatment of animals, Roberts countered with his own version of a moral argument: “People living in states that produce a lot of pork may think there’s a moral value in providing low cost protein,” which sounds so much like a pork lobby ad campaign I’m surprised Roberts didn’t end his questioning by saying, “Pork: The other white meat.” For his part, Samuel Alito said that “once it’s on the plate,” nobody should really care how it got there.
As for the liberals on the court, they were in their own tough spot: They didn’t want to follow Gorsuch down his dystopian rabbit hole of unstoppable bans on anything a state deems “immoral,” but they also didn’t want to whip to the other extreme of Roberts’s and Alito’s deregulatory nightmare. Sonia Sotomayor did what I would have done, which was to keep trying to refocus the argument on the health and safety risks posed to consumers who eat pork produced from pigs in gestation crates. There is some science that suggests it’s not the best way to raise meat, and if California can win because eating pork from mistreated pigs is bad for consumers, then we can skirt the moral issue altogether. Elena Kagan and Ketanji Brown Jackson seemed to be searching for some procedural way out, some way to avoid the constitutional and moral issues posed by the case.
They might have found that way out, at least temporarily, because the National Pork Producers are simply asking the Supreme Court to allow their lawsuit to go forward in the district court, while California wants the case against it dismissed outright. There could be up to seven votes on the Supreme Court to let the National Pork Producers “win” by allowing the lawsuit to continue and forcing California into a lengthy trial to defend its law. That trial might push California to amend its law in some way, or the pork producers might lose on the merits. Still, any verdict by a lower court seems likely to be appealed, and the issue will just land back in front of the Supreme Court in a couple of years.
Another possibility is that the three liberals will join Thomas and Gorsuch for a 5-4 decision to save the pigs but do so in a moderate way that doesn’t allow the conservative extremists to annihilate the dormant commerce clause. Or maybe the four pro-pork conservatives pick up Kagan, who seemed most spooked by the parade of horribles that happens if California’s moral product ban ideas are taken up by red states. Or maybe the case is a 7-2 win for California, with Roberts and Alito on the losing side and sentenced to watching Babe until they get it.
I don’t know who will win, because I don’t know what these justices fear most when they hear something go bump in the night. But I know what should happen: Congress should pass a law banning the use of gestation crates in pork production. This shouldn’t be a dormant commerce clause issue; this should be a point-and-click use of Congress’s commerce authority. If Congress would just pass a law, it would obviate the need for the Supreme Court to weigh in on this issue and potentially tear down a critical wall preventing bigotry in commerce.
Unfortunately, the state that is the biggest producer of pork is… Iowa. No politician who thinks they might be president someday is going to vote for Iowa’s people to reap less profit so that Iowa’s pigs can have a better life. So Congress is not going to save the pigs. That brings us back to the Supreme Court, which probably won’t risk saving the pigs unless the two people who only want to save the pigs to justify bigotry against humans get their way.
Like I said, I’m a realist. I understand how the sausage gets made.