The SCOTUS decision to let California demand the pork industry become slightly less cruel is pretty important

While the composition of the majority in this Supreme Court judgment is interesting, as traditional conservative and liberal lines seem not to apply, the fight is over something more significant than pork: the right of States to make laws even if they influence activity in other states that don't like the law. In demanding pigs be kept in slightly more humane conditions if they are to be sold as pig parts in California, the state is impacting how people will grow pork in other places. It seems the Bear Republic is so populous and enjoys its bacon so much that "re-tooling" to meet CA standards will "force" much of the pork industry to be less cruel.


In 2018, California voters approved the law — Proposition 12 — which bans the sale of pork products from farms with metal enclosures that restrict pigs from turning around. The two pork producers who brought the suit alleged that Proposition 12 violated the court's "dormant Commerce Clause" precedents, which bar states from discriminating against out-of-state goods or impermissibly burdening interstate commerce. The pork producers did not claim discrimination (Proposition 12 applies to farms both inside and outside of California) but instead argued it would drive up industry costs across the country.

A slim majority of the court rejected this argument, and the lineup was scrambled ideologically. The five who took California's side were Justices Neil Gorsuch, Clarence Thomas, Amy Coney Barrett, Sonia Sotomayor and Elena Kagan. The first three were appointed by Republican presidents, while the latter two were appointed by Democratic President Barack Obama. Gorsuch, writing for himself, Thomas, Sotomayor and Kagan, said that the pork industry's claim of harm "remains nothing more than a speculative possibility." Barrett did not join that part of Gorsuch's majority opinion but ruled in favor of California on separate grounds.

Noted beer enthusiast Justice Brett Kavanaugh is really ticked off at the idea California can, by way of influence, "make law" for other states. Things like California's more demanding auto-emissions standards, which have influenced the industry to be slightly less polluting, would be questioned. I am sure California's attitudes towards women managing their own healthcare is a huge influence upon him.

Kavanaugh wrote a separate opinion, in which he fully embraced the industry's arguments of substantial harm and accused California — the nation's most populous state — of trying to "unilaterally impose its moral and policy preferences for pig farming and pork production on the rest of the Nation."

"The State has aggressively propounded a 'California knows best' economic philosophy — where California in effect seeks to regulate pig farming and pork production in all of the United States," Kavanaugh wrote. "California's approach undermines federalism and the authority of individual States by forcing individuals and businesses in one State to conduct their farming, manufacturing, and production practices in a manner required by the laws of a different State."

Justice Gorsuch however, in writing the majority, reminds Kavanaugh that voters in California mean just as much in the United States as those of smaller states, and have the same right to self-regulate.

Gorsuch, in his majority opinion, fired back at Kavanaugh, stating that his colleague's argument "means voters in States with smaller markets are constitutionally entitled to greater authority to regulate instate sales than voters in States with larger markets." He then dryly quipped, "So much for the Constitution's 'fundamental principle of equal sovereignty among the States.'"

Justice Kavanaugh seems to stand on the side of minority rule.