I. Laurence claus

Professor of Law

autonomy and animal welfare in National Pork Producers Council v. Ross

Concerned about animal suffering, Californians voted to ban sales in California of pork from farms where mother pigs were confined in such small spaces that they could not lie down, stand up, fully extend their limbs, and turn around freely . Californians insisted that, with narrow exceptions, “breeding pigs” in California had to be able to do all these things, and that each had to have at least 24 square feet of usable floor space . If pork came from elsewhere, it could be sold in California only if produced in compliance with the California rules

Not much pork is produced in California, but a lot is sold here . Out-of-state producers complained that to access the California market, they would have to make expensive changes to their farming methods They sued, arguing that for California to impose such a burden on them would violate the United States Constitution .  In particular, they pointed to the Constitution’s conferral on Congress of power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . ” Congress had made no law that could prevent California’s new law from operating But the pork producers pointed to Supreme Court precedents that discerned a constitutional limitation on state governments implicit in the Constitution’s conferral on Congress of power over interstate commerce

The Supreme Court’s so-called “Dormant Commerce Clause” jurisprudence clearly condemns state laws that discriminate against interstate commerce to give in-state businesses an advantage . According to the Court, the Constitution does not let state governments shield in-state businesses from out-of-state competition . The Court has gone beyond condemning state laws that explicitly treat out-of-state businesses differently from instate businesses and has also struck down other measures in which the Court finds lurking a protectionist purpose But what about a law like California’s? The pork producers could not find a way to call that law protectionist . It treated in-state and out-of-state pork producers just the same . But it imposed a big new burden on them all Could that be enough to violate the United States Constitution?

In National Pork Producers Council v. Ross, the Supreme Court splintered in its answer . In his opinion for the Court, Justice Gorsuch observed that the pork producers had not alleged even covert discrimination against out-of-state producers . Although a majority of the Court generally agreed that California’s law should be upheld, a different faction emphasized that sometimes being too burdensome might be enough to cause a nondiscriminatory law to fall afoul of the Constitution .

Writing only for Justices Thomas, Barrett, and himself in Part IV–B, Justice Gorsuch contended that courts were not the places to decide whether the good done by California’s law was greater than the burdens it imposed .  Why not? Because the interests served by that law, such as preventing animal suffering, and the interests adversely affected by that law, such as having low-cost access to desired food, are “incommensurable . ” Courts are not distinctively capable of deciding which matters more, and whether a law like California’s strikes a just compromise between those interests Quoting Justice Scalia, Justice Gorsuch observed: “the task is like being asked to decide whether a particular line is longer than a particular rock is heavy ”

“But we do this all the time” could have been the response . Chief Justice Roberts’ partial dissent cited some examples from the myriad .  In one case, the Court weighed “the purpose to keep the streets clean and of good appearance” against “the constitutional protection of the freedom of speech and press . ” In another, the Court concluded that the reasonableness “of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure . ” In a third, the Court held that in “considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof . ”

If the incommensurability of competing interests always meant that courts should not decide which interest should prevail, then much in constitutional bills of rights should be nonjusticiable . Justiciable bills of rights often invite enforcing courts to substitute the judges’ moral reasoning and intuition for those of others in government about how competing interests stack up against each other, even when those interests are incommensurable .

Each of us in our own lives must make judgments involving incommensurable interests every day . Do we let our eight-year-old practice the piano (which we’ve told her is a very good thing to do) when our baby is asleep? Probably not—we would usually judge the good of letting the baby sleep to be greater But what if our child has a piano recital tomorrow? Then maybe we need to find a way to move the baby . Reasonable people may disagree about what’s best And when they do in the wider space of a whole society, a written constitution can make the courts the dispute resolvers .  Incommensurability, and some need to resort to moral intuition about what is best to do, all things considered, cannot stop courts from doing the balancing .

When the nation and a state are vying for power, deciding who has it is up to the courts in federations like ours Deciding what individual rights-based limits on government power there should be need not be up to the courts— constitutional democracy can flourish without that jurisdiction, as Canada long proved and as Australia continues to prove The Dormant

Commerce Clause functions like an individual rights limitation, even though derived by implication from a conferral of national power .  It’s the pork producers who were primarily doing the complaining, not the national government (though the national executive chimed in on their behalf) . Justice Gorsuch’s approach implicitly distinguished the Court’s Dormant Commerce Clause jurisprudence methodologically from the jurisprudence by which the Court enforces express constitutional rights . In applying express constitutional rights, the Court often has to weigh incommensurables .  But the Dormant Commerce Clause is express only in the opinions of the courts In signaling that the Dormant Commerce Clause should largely be confined to precluding overt or covert state protectionism, Justice Gorsuch implied that the justices should use their own scales to weigh incommensurable interests only when the Constitution’s text clearly insists .