A conservative Supreme Court could still surprise us

It is easy to look at the Supreme Court with its conservative supermajority and assume that all of its decisions are foreordained. Indeed, recent Gallup polling shows record-low trust in the court and a higher-than-ever view that it has become too conservative. But even with the court’s current makeup, it is still capable of producing strange bedfellows on some important cases.

On Tuesday, the court hears arguments in a case challenging California’s farm animal confinement law that was approved by voters in 2018 by an overwhelming margin. Most notably, the Farm Animal Confinement Initiative, or Proposition 12, banned the sale of pork products in California that were produced using extreme methods of confinement where the cage is too small for the animal to even turn around. Despite evidence that this practice presents a public health hazard due to the spread of diseases, the majority of female breeding pigs still live in these conditions.

Industry groups led by the National Pork Producers Council sued to overturn the initiative, arguing that it is unconstitutional under the “dormant” Commerce Clause. Since the 1800s, the Supreme Court has recognized that even when Congress has not legislated on a particular issue using its authority to regulate interstate commerce under the Commerce Clause, states may not enact protectionist laws that discriminate against commerce from other states in favor of their own industries.

Even though Proposition 12 is plainly nondiscriminatory — it applies to all pork, including pork produced in California — the National Pork Producers Council argues that the measure violates the dormant Commerce Clause because the vast majority of pork consumed in the state is produced outside of it and Proposition 12, in their view, puts an undue economic burden on pork producers.

This argument has not served them well to date, and the pork industry has faced a string of lossesin this case from judges whose judicial philosophy runs the gamut. A federal district court dismissed the lawsuit, concluding that it did not plausibly allege any constitutional violation. A three-judge panel from the Ninth Circuit Court of Appeals, which included two judges appointed by Republican presidents, rejected the industry arguments and upheld Proposition 12 within an opinion written by conservative Judge Sandra Ikuta.

While at least four justices voted for the Supreme Court to take up the case, no one should assume that Proposition 12’s fate is sealed. This case may result in strange bedfellows — the most liberal and most conservative justices — ruling in the majority. This is due, at least in part, to the views of the dormant Commerce Clause held by some of the conservative justices.

In past opinions, Justice Clarence Thomas has dismissed the existence of the dormant Commerce Clause altogether, saying that it “has no basis in the text of the Constitution.” He believes that if a state law is discriminatory then Congress has the power to intervene. Thomas is correct — Congress could supersede California on the issue, but it has chosen not to pass proposed bills that would do that. Under this view, the pork industry’s energy would be better spent wandering the halls of the Cannon House Office Building on Capitol Hill flagging down legislative staffers than wasting the justices’ time at the Supreme Court.

Justice Neil Gorsuch has expressed skepticism about the doctrine as well. In a 2019 dormant Commerce Clause case regarding a Tennessee liquor license law that was challenged as protectionist, Gorsuch wrote in the minority that in striking down the law his colleagues “discovered a duty and power to strike down laws like these as unconstitutional,” but made clear that he did “not see it.” He then dismissed the dormant Commerce Clause as an “implied doctrine” and criticized it as a source of “judicial activism.”

The rest of the court, including the relatively liberal justices, should also conclude that Proposition 12 does not violate the dormant Commerce Clause if they follow the Constitution’s text and history. The Commerce Clause was adopted, in relevant part, to address concerns about economic protectionism — laws designed to benefit a state’s own industry and finances by discriminating against the products of other states.

However, Proposition 12 is neither protectionist nor discriminatory. It applies only to sales within California, and it applies regardless of where the meat being sold originated. The initiative is unlike any law the court has struck down under the dormant Commerce Clause.As lower courts repeatedly held, there is no merit to the National Pork Producers Council’s constitutional argument, and justices from all sides should be able to see that.

While public opinion of the court may have hit an all-time low after last term’s polarizing rulings, this case could provide a glimmer of hope that it can still function as intended with unlikely allies seeing past special interest talking points and coming to a shared conclusion — even if they take different routes to arrive there.

Elizabeth Wydra is president of Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text and history. She previously served as clerk at the U.S. Court of Appeals for the Ninth Circuit. Follow her on Twitter @ElizabethWydra.